Covered and excluded employment

The following chart may be used as a guide in determining whether a specific type of employment is subject to contributions under the UI Law. Questions concerning coverage of particular services should be directed to the Department of Labor, Liability and Determination Section (see Unemployment insurance issues – Where can I find the answers? ).

Covered and excluded employment Class of employment Treatment under UI Law Agricultural laborers Covered, except for services performed by federally excluded H-2A Foreign Guest Workers. Non‑U.S. residents (referred to in federal and state law as aliens and noncitizens ) Covered if services are performed by a non‑U.S. resident lawfully present in the United States for the purpose of performing such work or lawfully admitted for permanent residence in the United States. Although undocumented non-U.S. residents may not collect benefits, any remuneration paid to them is subject to contributions. Babysitters under age 18 Excluded unless performed for nonprofit organizations, governmental agencies, or Indian tribes. Casual laborers Covered Casual laborers under age 21 When services consist of yard work and household chores in and about a residence, and do not involve the use of power-driven machinery: Covered if performed for nonprofit organizations, governmental entities, or Indian tribes Excluded if performed for employers other than nonprofit organizations, governmental entities, and Indian tribes Children under age 14 Covered if performed for nonprofit organizations, governmental entities, or Indian tribes Excluded if performed for employers other than nonprofit organizations, governmental entities, and Indian tribes Construction industry workers Covered** 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 and distributions, is reportable and subject to contributions. Domestic employment Personal or domestic services performed in the home are covered employment. Drivers – agent or commission Covered when engaged in distributing meat, vegetables, fruit, or bakery products; beverages (other than milk); laundry or dry-cleaning services. Driver of commercial vehicles Covered*** Family employment: Minor children, under 21, of a sole proprietor Spouse of sole proprietor Child/spouse of partner Any family member employed by corporation Excluded (includes stepchildren) Excluded Covered Covered Employment outside New York State Generally, services performed entirely outside New York State are excluded. However, if such services are not covered under the laws of any other state, they are covered under New York State 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 New York State; or (2) within the United States, Canada, or the Virgin Islands, if the place from which the services are directed and controlled is in New York State. If none of these conditions apply, and the services are performed by a New York State resident, an employer may elect to voluntarily cover the services. Golf caddies Excluded unless performed for nonprofit organizations, governmental entities, or Indian tribes. Government and Indian tribe employees Covered except for the following services: • elected officials • members of legislative bodies or the judiciary • members of the New York State National Guard or Air National Guard, except a person who renders such services as a regular state employee • individuals hired on a temporary basis in case of fire, snow, earthquake, flood or similar emergency • incarcerated individuals of custodial or penal institutions • officials in major, nontenured policy making or advisory positions • individuals in policy making or advisory positions whose official duties do not require more than eight hours per week to perform Incarcerated individuals of a custodial or penal institution Excluded if performed for nonprofit organizations, governmental entities, or Indian tribes. Independent contractors Excluded Individual proprietor Excluded Industrial homeworkers Covered 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. See chart under Annual wage base . 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. (See common paymaster for mailing addresses.) Limited Liability Company (LLC) members Covered if the LLC has elected S Corporation tax treatment for New York State purposes. Not covered if no such election has been made. Maritime employment Covered. If a vessel operates in more than one jurisdiction: covered in New York State, provided the services are performed on vessels of American registry which are normally managed and controlled from an office in New York State. Ministers, ordained Excluded for nonprofit organizations. Also excluded for nonprofit organizations are members of religious orders in the performance of their duties, members elected or appointed to an office within the discipline of a bona fide church and engaged in religious functions, and persons employed at a place of religious worship as a caretaker or for performance of duties of a religious nature. Models Covered* Musicians Covered* Newspaper delivery persons Services are excluded when the person is paid according to sales or other output, rather than the number of hours worked, and the person performs services pursuant to a written contract which provides that the person will not be treated as an employee for federal tax purposes. Partners (including Limited Liability Partnership) Earnings are not subject to contributions under UI Law and services cannot be covered on a voluntary basis. Part‑time employment Covered, unless specifically excluded* Performing artists Covered* Physicians ‑ fellows, residents, and interns Covered when performing services for a health care facility, including academic medical centers. Railroad Unemployment Insurance Act, employees subject to Excluded Recreational bowlers Excluded Rehabilitative services, persons receiving Excluded for nonprofit organizations, for persons receiving rehabilitative services in a facility conducted for such purposes. Remunerative work, persons given Excluded for nonprofit organizations for persons given remunerative work in a facility conducted for the purpose of providing such work for persons of impaired physical or mental capacity. Salespersons, traveling or city Licensed insurance agents or brokers Licensed real estate brokers or sales associates Traveling or city salespersons who work full-time soliciting orders for merchandise for resale or use in the purchaser’s business are covered, if substantially all of such work is to be personally performed and the person performing it has no substantial investment in the facilities used in performance of such services except the facilities for transportation. Excluded if substantially all of the remuneration for the services performed is directly related to sales or other output, rather than to the number of hours worked, and the services are performed pursuant to a written contract containing certain provisions. Excluded if substantially all of the remuneration for the services performed is directly related to sales or other output, rather than to the number of hours worked, and the services are performed pursuant to a written contract containing certain provisions. Seasonal employment Covered unless specifically excluded* Shared employment 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 students in school beyond high school Elementary and high school students. Students in regular attendance in the educational institution which employs them or their spouses Students enrolled in nonprofit or public educational institutions in certain work-study programs which combine academic instruction with work experience Students employed at a camp while enrolled full‑time at a secondary or higher educational institution or, if between academic years or terms, there is a reasonable assurance that the student will be enrolled in the succeeding academic year or term Covered unless specifically excluded* Covered only if employed by nonprofit organizations, governmental entities, or Indian tribes. Excluded when in regular daytime attendance and employed by other than nonprofit organizations, governmental entities, and Indian tribes. However, if the employer is subject under FUTA, these earnings must be reported either quarterly or annually. Excluded. The spouse’s employment is excluded if advised at the time of hire that the employment is under a program of financial assistance to the student and will not be covered for UI purposes. Excluded. Services performed for a camp as defined in Public Health Law § 1392 are excluded if: the camp does not operate for more than seven months during a year and the preceding year, or, must have average gross receipts for any six months in the preceding calendar year which were not more than 33 1/3% of its average gross receipts for the other six months of that year. the student works less than 13 weeks in a year. Temporary employment Covered unless specifically excluded* Youth services program participants Excluded for nonprofit organizations under certain conditions * See Covered employment , for services specifically covered by law. Recent appeal board and court decisions have determined that models, musicians, and performing artists may be independent contractors under certain circumstances. For further information, contact the Department of Labor, Liability and Determination Section (see Unemployment insurance issues – Where can I find the answers? ). **See New York State Construction Industry Fair Play Act . ***See New York State Commercial Goods Transportation Industry Fair Play Act .