New York Governor David A. Paterson signed into law the New York State Construction Industry Fair Play Act (Senate Bill 5847), which creates a clear litmus test to distinguish the difference between a worker and an independent contractor among construction industry workers. It also provides a method to clearly define which business on a construction project is responsible for which workers. Also, for the first time in state history, it imposes monetary and criminal penalties specifically for the act of employee misclassification on construction projects. The new law, which becomes effective on October 29, adds a new article 25-B to the New York Labor Law, providing for a presumption of employment in the construction industry. The law provides that any person performing services for a contractor will be classified as an employee unless the person is a separate business entity or unless the person meets the following criteria, in which case the person will be considered as an independent contractor: (1) the individual is free from control and direction in performing the job, both under his or her contract and in fact; (2) the service must be performed outside the usual course of business for which the service is performed; and (3) the individual is customarily engaged in an independently established trade, occupation, profession, or business that is similar to the service at issue. (click on link to read full story)