New York: employee or independent contractor?

The test depends on which law you're dealing with. A worker can be a contractor for one law and an employee for another.

LawTestStatute
Unemployment insurancecommon lawN.Y. Labor Law § 511(1)(a)
Wage and hour / wage paymentABC for construction (Construction Industry Fair Play Act)N.Y. Labor Law § 861-c
Federal income tax, FICA, FUTAIRS common-law testIRS
Federal minimum wage and overtimeEconomic reality test (FLSA)DOL

How the statute words it

Construction (§ 861-c), summarized: free from control and direction in performing the job, both under the contract and in fact; service performed outside the usual course of business for which the service is performed; customarily engaged in an independently established trade, occupation, profession, or business similar to the service at issue (or a separate business entity under § 861-c(2)).

Details and exceptions

Law: N.Y. Labor Law § 511(1)(a)

Running payroll in New York?

Recent changes

Last verified against the official source on October 8, 2026.

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Sources

We copy figures from official sources and re-check them against the source before every update. See our methodology. This is general information, not legal advice.