SMALL BUSINESS COUNCIL
Independent Contractor Work Group

Staff Contact: Tom Minnick

In March, the Governor issued Executive Order no.78 which established a Task Force on Independent Contractors.

According the executive order, the Task Force will be comprised of nine members which include:

The Commissioner of Labor or his designee; the Commissioner of Taxation and Finance or his designee; the Chairman of the Workers Compensation Board or his designee; the Director of the Governor's Office of Regulatory Reform or his designee; the Executive Director of the State Insurance Fund or his designee; two members appointed by the Governor upon recommendation of the New York State AFL-CIO and two members appointed by the Governor upon recommendation of The Business Council of New York State.

The Governor charged this group with:

  • Identifying and recommending guidelines to provide clarity concerning the proper classification of workers as independent contractors or employees;
  • Propose recommendations to achieve uniform determinations of independent contractor or employee status among the various state agencies;
  • Ensure that any recommendations are designed to continue the protections afforded legitimate employees;
  • Receive and evaluate information from labor unions, business groups and all other interested parties; and
  • Report to the Governor on or before December 31, 1998 with legislative and regulatory proposals.

However, recent changes have been made to the original executive order. After requesting two additional labor seats the AFL-CIO and the business community were each granted two additional seats.

The Business Council received a third seat on the Task Force which is being filled by Mr. Gary Olsen from the General Building Contractors of New York State, Inc. The forth seat was given to the National Federation of Independent Business.

In addition, the report which was scheduled to be delivered to the Governor by December 31, 1998 has been extended to March 1999.

The Governor's office is currently in the process of creating a new executive order with all of these amendments.

The Problem...

Currently, businesses have no simple method for identifying whether an individual that is hired is an independent contractor or an employee. The difficulty has resulted in a statewide problem that encompasses many diverse industries. Employer-employee relationships are defined by at least four regulatory entities for differing purposes.

Internal Revenue Service and the NYS Department of Tax and Finance for taxation;

The NYS Department of Labor for unemployment insurance and labor standards; and

The Workers' Compensation Board for workers' compensation insurance.

Unfortunately, each of the regulatory agencies has slightly differing definitions of what constitutes an employer-employee relationship. To complicate matters even more, there is significant case law that also attempts to define this relationship which unfortunately is often contradictory.

In short, the business community needs to know in advance that a person they hire is in fact an independent contractor or an employee. To accomplished this, there needs to be consistency between the three agencies.

Task Force Members

The following is a list of individuals who have been chosen to sit

Dept. of Labor:
Mr. Jerome Tracey
Counsel

Dept. of Tax & Finance:
Ms. Michelle Cummings
Deputy Commissioner, Tax Policy & Program Development

Workers' Compensation Board:
Ms. Brenda Rigas

Governor's Office of Regulatory Reform:
Ms. Wendy Burns
Project Manager

State Insurance Fund:
Mr. Pete Molinaro
Associate Counsel

AFL-CIO:
(Their four names are currently going through the appointments process.)

The Business Council:
Ms. Dale E. Skivington
Counsel, Eastman Kodak Co.

Mr. H. Kenneth Schroeder, Jr.
Counsel, Hodgson, Russ

Ms. Michelle L. Stafford
Assistant State Director,National Federation of Independent Business

The Business Councils Designees

Ms. Dale E. Skivingston
Dale E. Skivington is a member of the Employment and Personnel Law Legal Staff at Eastman Kodak Company. She currently chairs the Business Council's Labor and Human Resources committee. She also served on the Governor's Task Force on Sexual Harassment.

Prior to joining the Eastman Kodak Company, she was in private practice litigating civil rights and personal injury matters, and an Assistant Attorney General for the State of New York.

Ms. Skivington has also lectured on various civil rights and employment law matters. She was an adjunct faculty member of the State University of New York at Brockport and is an instructor at the Cornell School of Industrial and Labor Relations and a lecturer at the Simon School at the University of Rochester, the Equal Employment Advisory Council, the Council on Education Management and Empire State College. She is a past president of the Board of Legal Aid Society of Rochester and served on the County Bar President's Commission on the Access to Justice. She has served on the boards of the Monroe County Bar Association, Monroe County Bar Foundation, Greater Rochester Association of Women Attorneys, and various community organizations.

Ms. Skivington is a graduate of the State University College at Potsdam and the Albany Law School.

Mr. H. Kenneth Schroeder, Jr.
H. Kenneth Schroeder, Jr. entered the private practice of law with Hodgson Russ in 1963. He is a senior trial and litigation attorney in the Firm's litigation Department. Mr. Schroeder interrupted his growing practice with the Firm to serve as U.S. Attorney for the Western District of New York from 1969-72.

On three separate occasions, Mr. Schroeder has been selected by the Chief Judge of the United States District Court for the Western District of New York to serve as Chairman of the U.S. Magistrate's Merit Selection Committee for the Western District. He has also chaired the Public Defender Merit Selection Committee for the Western District of New York.

He has extensive federal and state litigation and trial experience in the fields of contracts, labor and employment practices (including ERISA), patents and copyright, insurance defense and coverage issues, civil and criminal antitrust law, federal and state tax criminal prosecutions, U.S. Customs law as well as in general civil litigation. He also has handled numerous appeals in the state and federal appellate courts.

Mr. Schroeder is listed in Who's Who in America and in Best Lawyers in America.

Mr. Gary Olsen
Currently the Director of Governmental Affairs for the General Building Contractors of New York State, Inc. (GBC), a statewide trade association representing general contractors performing over $6 billion in capital construction services to public and private sector owners. In this capacity he acts as the conduit to the legislative and regulatory decision makers on behalf of the general contractor.

Prior to his role at the GBC, from 1989 to 1997 he was the Manager of Government Affairs for the Business Council of New York State. Issue areas included transportation, labor and human resources, contract procurement, and he acted as liaison to the New York State Construction Industry Council, an affiliate of The Business Council. He also represented county governments in the legislature from 1986 until 1989.

He is a graduate of Siena College in Loudonville with a degree in Business Administration and a concentration in Political Science. A lifelong resident of the Capital District, he now resides in Delmar.

The Governor's office appointed a fourth business seat to the National Federation of Independent Business, which represents thousands of small business owners throughout New York State. This seat will be represented by Ms. Michelle L. Stafford, Assistant State Director of NFIB/ New York.

Ms. Michelle L. Stafford
NFIB York Assistant State Director, Michelle is an experienced government relations professional focusing on legislative and policy research; program development and evaluation; lobbying and advocacy. During her time with NFIB, Michelle has helped increase the small business community's voice in the legislature. As one of only two lobbyist in the New York office, she is responsible for representing member interests; analyzing proposed legislation and regulations to determine impact upon the small business community; and serving as liaison between special interest groups, non-profit corporations, government officials and media.

Prior to joining NFIB, Michelle worked as Legislative Assistant for Senator Alton R. Waldon Jr., and as Manager of a small juvenile products manufacturer. She has also worked with National Press Books, a small, non-fiction publishing company in Washington, DC; and held a fellowship with R&M European strategy, a small European lobbying firm.

Michelle holds a bachelor's degree from American University in Washington, DC and a master's degree from City College of New York. Currently she is affiliated with the Empire State Society of Association Executives, the Government Affairs Council and the Small and Independent Business Council of The Business Council of New York State, Inc. She sits on the Taxpayer Advisory Council for the NYS Tax Department, as well as the Unemployment Advisory Committee for the NYS Labor Department. Michelle is in her third year of instruction at the Institute for Organizational Management in Newark, Delaware.

Independent Contractor Public Hearing Notice

The Governor's Task Force on Independent Contractors met for the second time on January 13 at the State Insurance Fund. During this meeting agencies delivered presentations on case law and the appeals process.

Following this discussion, the Task Force agreed upon conducting public hearings around the state to hear from the community on this issue.

The following public hearings have been scheduled:

  • Feb. 3 - Albany
    10:00 a.m.
    Legislative Office Building
    2nd Floor, Hearing Room A
    Albany, NY
  • Feb. 4 - New York City
    10:00 a.m.
    270 Broadway, Room 2400
    New York, NY
  • Feb. 24 - Rochester
    10:00 a.m.
    Monroe County Office Bldg., Legislative Chambers
    39 West Main Street, Rochester, NY
  • Feb. 25 - Buffalo
    10:00 a.m.
    Mahoney State Office Bldg.
    65 Court Street, Part 1 Buffalo, NY

I encourage all affected parties to take advantage of this opportunity to testify.