|BILL AS INTRODUCED||2007-2008|
Introduced by Representative Kitzmiller of Montpelier
Subject: Labor; workers’ compensation; fraud enforcement; independent contractor designation; misclassification
Statement of purpose: This bill proposes to improve enforcement of workers’ compensation fraud; to clarify the definition of independent contractor; and to limit misclassification of employees.
AN ACT RELATING TO INDEPENDENT CONTRACTORS, MISCLASSIFICATION, AND FRAUD IN WORKERS’ COMPENSATION
It is hereby enacted by the General Assembly of the State of Vermont:
Sec. 1. 21 V.S.A. § 601(14) is amended to read:
(14) “Worker” and “employee” means an individual who has entered into the employment of, or works under contract of service or apprenticeship with, an employer. Any reference to a worker who has died as the result of a work injury shall include a reference to the worker’s dependents, and any reference to a worker who is a minor or incompetent shall include a reference to the minor’s committee, guardian, or next friend. The term “worker” or “employee” does not include:
* * *
(I) An independent contractor which is a person that is in compliance with all the following: The person:
(i) Possesses or has applied for a federal employer identification number or Social Security number or has agreed in writing to carry out the responsibilities imposed on employers under this chapter.
(ii) Has control and discretion over the means and manner of performance of the work, in that the result of the work rather than the means or manner by which the work is performed is the primary element bargained for by the employer or person offering work.
(iii) Controls the time the work is performed and the time of performance is not dictated by the employer or person offering work. However an employer or person offering work is not prohibited from entering into an agreement with the person regarding completion schedule, range of work hours, and maximum number of work hours to be provided by the person, and in the case of entertainment, the entertainment to be presented.
(iv) Hires and pays the person’s assistants, if any, and to the extent that any assistants are employees, supervises the details of the assistants’ work.
(v) Has a separate business.
(vi) Has continuing or recurring business liabilities or obligations.
(vii) Has a business the success or failure of which depends on the relationship of business receipts to expenditures.
(viii) Receives compensation for work or services performed and the remuneration is not determined unilaterally by the hiring or contracting party.
(ix) Is responsible in the first instance for the main expenses related to the service or work performed. This does not prohibit the employer or person offering work from providing the supplies or materials necessary to perform the work.
(x) Is responsible for satisfactory completion of work and may be held contractually responsible for failure to complete the work.
(xi) Supplies the principal tools and instrumentalities used in the work, except that the employer may furnish instrumentalities that are unique to the employer’s special requirements or are located on the employer’s premises.
(xii) Is not expected to work exclusively for the employer or person offering work.
The Vermont General Assembly
115 State Street