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Reporting requirements of service, salary and deduction information to New York State Employees? Retirement System

Reporting requirements of service, salary and deduction information to New York State Employees? Retirement System
2 NYCRR Sections 315.2 and 315.3, as amended effective November 11, 2008

Rules have been adopted by the State Comptroller to provide guidance to participating employees concerning whether an individual is an employee or independent contractor for the purposes of membership in the New York State Employee?s Retirement System.

The rules provide that the following elements support the conclusion that an individual is an employee rather than an independent contractor:

(A) the employer controls, supervises or directs the individual performing the services, not only as to result but as to how assigned tasks are to be performed;

(B) the individual reports to a certain person or department at the beginning or during each work day;

(C) the individual receives instructions as to what work to perform each day;

(D) the individual's decisions are subject to review by the employer;

(E) the employer sets hours to be worked;

(F) the individual works at established and fixed hours;

(G) the employer maintains time records for the individual;

(H) the employer has established a formal job description;

(I) the employer's governing board formally created the position with the approval of the local civil service commission where necessary;

(J) the employer prepares performance evaluations;

(K) the employer requires that the individual attend training;

(L) the employer provides permanent workspace and facilities (including, but not limited to, office, furniture and/or utilities);

(M) the employer provides the individual with equipment and support services (including, but not limited to, computer, telephone, supplies and/or clerical assistance);

(N) the individual is covered by a contract negotiated between a union and the employer;

(O) the individual is paid salary or wages through the employer's payroll system;

(P) tax withholding and employee benefit deductions are made from the individual's paycheck; and

(Q) the individual is entitled to fringe benefits (including, but not limited to, vacation, sick leave, personal leave, health insurance and/or grievance procedures).

In contrast, the rules state that elements that support the conclusion that an individual is an independent contractor rather than an employee are as follows:

(A) the individual has a personal employment contract with the employer;

(B) the employer pays the individual for the performance of services through the submission of a voucher;

(C) the individual is authorized to hire others, at the expense of the individual or a third party, to assist the individual in performing work for the employer;

(D) the individual provides similar services to the public;

(E) the individual is concurrently performing substantially the same services for other public employers; and

(F) the individual is also employed or associated with another entity that provides services to the employer by contract, retainer or other agreement.

The new rules also set out a ?Presumption? that ?Except as prohibited by Section 2051 of Part 3 of Article 41 of the Education Law, which provides that a lawyer shall not simultaneously be an independent contractor and an employee of a school district or BOCES for the purpose of providing legal services, in the case of an individual whose service has been engaged by an employer in the capacity of attorney, physician, engineer, architect, accountant or auditor and who is also a partner, associate, including an attorney in an ??of counsel?? relationship, or employee of another organization or entity that has a contract, retainer or other agreement to provide professional services to the participating employer, it shall be presumed that the individual is an independent contractor and not an employee of the participating employer;?

The full text of 2 NYCRR 315, as amended, may be obtained from Jamie Elacqua, Esq., Office of the State Comptroller, 110 State Street, Albany NY 12236, (518) 474-9024, or email her at:

JElacqua@osc.state.ny.us

Full post as published by New York Public Personnel Law on November 13, 2008 (boomark / email).