THE NEW YORK STATE CONSTRUCTION INDUSTRY FAIR PLAY ACT: WHAT YOU NEED TO KNOW

In the construction industry, misclassification of workers has been an ongoing problem. General Contractors and Subcontractors routinely label their employees as independent contractors and/or pay their employees “off the books.” Studies have shown that somewhere between 15 and 25% of constructions workers are misclassified by their employers. Not only does this misclassification create burdens on the state and rule-following employers, it deprives workers of essential benefits such as overtime pay, workers’ compensation benefits and unemployment.

A decade ago, New York created the New York State Construction Industry Fair Play Act (Fair Play Act), creating a presumption that a person performing services for a contractor is an employee unless they can be shown to be an independent contractor or a separate business entity. The criteria under the Fair Play Act for proving a worker is an independent contractor are:

1. The worker is free from direction and control in performing the job; AND

2. The work performed is not part of the usual work done by the business that hired the worker; AND

3. The worker has an independently established business.

If a contractor willfully violates the Fair Play Act, there are monetary penalties and there can be criminal penalties. Employers are required to post notice of the Fair Play Act in a “prominent and accessible” place on the job site. Failure to meet this requirement also has monetary penalties.

If you are a construction worker and are injured on the job, you should file a claim for workers’ compensation benefits, even if your employer pays you off the books and/or informs you that you are an independent contractor. A claim must be filed within two years of the accident or injury to be timely.