Covered or Excluded Employment
Employment is any service a person performs under a contract of hire (written or oral). An employee is a worker who performs services for compensation under the supervision, direction, and control of an employer. Compensation includes salaries, commissions, bonuses, and the reasonable money value of board, rent, housing, lodging, or similar advantage received.
Unless excluded by law, all services an employee performs for a liable employer is covered. This applies whether it is:
- Part-time
- Full-time
- Temporary
- Seasonal
- Casual
Employees may perform services:
- On or off the employer's premises
- In their own homes
Industrial homeworkers are employees under the State Labor Law.
Excluded employment: The services of certain employees are not covered under the Unemployment Insurance (UI) Law. Their earnings are not subject to contribution. They are not entitled to UI benefits based on such services.
Treatment of certain services under the UI Law
| Type of Employment | Status Under UI Law |
|---|---|
| Agricultural workers | Covered employment if they work for a liable agricultural employer. See our Agricultural Employment pamphlet. |
| Non-U.S. Residents |
|
| Baby-sitters under the age of 18 | Excluded unless they work for non-profit organizations, government entities or Indian tribes. |
Caretakers at a place of religious worship and Individuals employed at a place of religious worship for duties of a religious nature | Excluded employment unless the employer has chosen voluntary coverage for them. |
| Casual laborers | Covered employment |
| Casual laborers under the age of 21 doing yard work and household chores in and around a residence not involving the use of power-driven machinery | Excluded employment unless they work for non-profit organizations, government entities or Indian tribes. |
| Children under the age of 14 | Excluded employment unless they work for non-profit organizations, governmental entities or Indian tribes. |
| Corporate officers | Officers of all corporations, including professional, Subchapter S and closely-held corporations, who perform services for the corporation are employees. Any compensation for these services, including dividends or distributions, is subject to contribution. |
| Domestic employees | Personal or domestic services performed in the home are in covered employment (with certain exceptions). See our Household Employers Guide for Unemployment Insurance. |
| Drivers — agent-drivers and commission-drivers distributing meat, vegetables, fruit or bakery products; beverages other than milk; or laundry or dry-cleaning. | Covered employment |
| Family members: Children under 21 of a sole proprietor | Excluded employment (includes step-children) |
| Family members: Spouse of sole proprietor | Excluded employment |
| Family members: Child/spouse of partner | Covered employment |
| Family members: Any family member of a corporate officer employed by the corporation | Covered employment |
| Golf caddies | Excluded unless they work for non-profit organizations, government entities or Indian tribes. |
| Government employees and employees of Indian tribes | The following types of employment for government entities and Indian tribes are excluded:
|
| Industrial Homeworkers | Covered employment |
| Independent contractors | Excluded employment. See our Independent Contractors pamphlet. |
| Individual proprietor | Earnings are not subject to contribution and services cannot be covered on a voluntary basis. |
| Inmates of custodial or penal institutions | Excluded employment when they work for non-profit organizations, government entities or Indian tribes. |
| Joint Employment/Common Paymaster | If a person is jointly employed by two or more employers that are financially related, contributions on the total earnings of that person are required from these employers only on the amount up to the annual wage base as if they were a single employer. If two or more financially related corporations concurrently employ the same individual(s) and pay such concurrently employed individual(s) through a common paymaster, which is one of such corporations, the common paymaster may report and pay UI contributions under its own account up to the annual wage base amount on the remuneration paid to each concurrently employed individual. However, if reporting by the common paymaster has not been approved for FUTA purposes, then each of the employers must report its share of the wages paid to the concurrent employee(s) but pay contributions only on the wages up to the annual wage base amount in the aggregate. Contact the Tax Department and Labor Department for information on filing as a common paymaster. |
| Maritime employees | Covered employment if they work within or primarily within NYS waters. Services in interstate or foreign commerce are covered in NY if performed on vessels of American registry which are normally managed and controlled from an office in NYS. |
| Members, Limited Liability Company | Covered if the LLC has elected S-Corporation tax treatment under the New York State Tax Law. Not covered if no such election has been made. |
| Excluded employment when they work for non-profit organizations. | |
| Models | Covered employment under certain conditions. |
| Musicians | See our Department Guidelines for Determining Worker Status: Performing Artists. |
| Newspaper Delivery Persons | Excluded if:
|
| Out-of-state employees | Generally, services performed entirely outside NYS are excluded. However, if such services are not covered under the laws of any other state, they are covered under NYS law if performed: (1) outside the United States (except Canada and the Virgin Islands) by a citizen of the US for an American employer whose principal place of business is located in NYS; (2) within the United States, Canada or the Virgin Islands, if the place from which the services are directed and controlled is in NYS. If none of these conditions apply, and the services are performed by a NYS resident, an employer may choose to cover the services. See our pamphlet on Determining Jurisdiction When Employment Services are Performed in a Number of Different States. |
| Partners | Earnings are not subject to contribution and services cannot be covered on a voluntary basis. |
| Part-time employees | Covered employment, unless specifically excluded |
| Performing artists | See our Department Guidelines for Determining Worker Status: Performing Artists. |
| Physician - fellow, resident, and intern | Covered employment if they work for a health care facility, including medical centers. Resident Physician is defined to mean only medical doctor (i.e. MD, DO) and not other medical professionals such as dentists or psychologists. |
| Railroad workers subject to the Federal Railroad Unemployment Insurance Act | Excluded employment |
| Rehabilitation program participants | Excluded employment if they work for a non-profit organization and are receiving rehabilitation as part of a program for people whose earning capacity is impaired by age or physical or mental deficiency or injury. |
| Remunerative work, persons given | Excluded employment if the work is done by a disabled individual for a nonprofit organization in a facility operating for the purpose of providing remunerative work for persons of impaired physical or mental capacity. |
| Sheltered workshop participants | Excluded employment if the work is done by a disabled individual for a nonprofit organization in a facility operating for the purpose of providing remunerative work for persons of impaired physical or mental capacity. |
| Salespeople: Traveling or city salespeople who work full-time soliciting orders for merchandise for resale or supplies for use in the purchaser's business operations | Covered employment if:
|
| Salespeople: Licensed real estate brokers and sales associates | Excluded employment if substantially all of the remuneration for the work is:
|
| Salespeople: Licensed insurance agents or brokers | Excluded employment if substantially all of the remuneration for the work is:
See our Guidelines for Determining Worker Status: Insurance Sales Industry. |
| Seasonal employees | Covered employment unless specifically excluded |
| Shared employees | Under certain circumstances, employers who are not financially related, but share the services of a single employee, are not required to report and pay the contributions on their own share of the employee's earnings. Whenever one of the employers takes the responsibility of hiring, firing, supervising, directing and controlling the shared employee, that employer will be allowed to report the employee for UI contribution purposes; therefore, separate reporting by each employer will not be required. Only in instances where employers have received a ruling that they must report separately for FUTA, will it be necessary to require separate reporting. |
| Students: College and other high school graduates | Covered employment unless specifically excluded |
| Students: Elementary and high school students |
*However, if the employer is subject to FUTA, they must report the earnings of elementary and high school students (either quarterly or annually). |
| Students: Students enrolled in and in regular attendance at the educational institution that employs them or their spouses | Excluded employment. The spouse's employment is excluded if the spouse is notified when hired that:
|
| Students: Students enrolled at a non-profit or public educational institution in certain work-study programs that combine academic instruction and work experience | Excluded employment |
| Students: High school or post-secondary school students employed by an organized camp | Excluded employment if:
See our pamphlet on Important Information for Organized Camps. |
| Temporary employees | Covered employment unless specifically excluded |
| Youth service program participants | Excluded employment if they work for non-profit organizations under certain conditions |
For questions about worker status call the Liability and Determination Section at (518) 457-2635.