MCAA Weekly Government Affairs Update: March 26, 2008

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GOVERNMENT AFFAIRS NEWS

Independent Contractor Legislation to Change Safe Harbor Provision to be Introduced
MCAA has learned that United States Congressman Jim McDermott (D-WA) is expected to introduce a negative independent contractor bill within the next few weeks. Representative McDermott’s office says the bill will “modify” Section 530 so it appears to be the companion bill to the Senate version, which was sponsored by United States Senator Obama. McDermott is currently soliciting original cosponsors to his legislation before it is introduced. He set a deadline of March 31 for all original cosponsors.  

Independent Contractor Status in Jeopardy
Minnesota’s well established six point test for determining independent contractor status is in danger. New amendments to Minnesota House Bill 3296 cut out “Parcel Delivery Drivers” who deliver shipments less than 250 pounds per parcel.

This would let independent contractor status be determined by the Common Law Test rather than the current more favorable six point test. Under this legislation, the Commissioner of Employment and Economic Development shall conduct audits of trucking industry employers to determine if there is a pattern of improper classification of owner-operators as independent contractors. The Commissioner shall target audit companies that have been found by courts and regulators in other jurisdictions to have improperly classified owner-operators as independent contractors.

If you have offices in Minnesota, please call your legislative leadership and tell them that this rule change will have a devastating impact on your ability to conduct your courier business under the independent contractor model. Lines 2.1 and 2.2 of House Bill 3296 specifically target the courier industry.

Call these leaders and tell them you deserve the right to use the independent contractor business model.

Rep. Joe Atkins, Chair of Commerce and Labor Committee 651-296-4192
Rep. Margaret Anderson Kelliher, Speaker of the House 651-296-0171
Rep. Marty Seifert, House Minority Leader 651-296-5374
Rep. Tony Sertich, House Majority Leader 651-296-0172

Two U.S. Congressmen to Speak at Second MCAA Independent Contractor Summit – Registration is Now Open!
You are invited to attend the second Independent Contractor Summit on April 23, 2008 at the Madison Hotel in Washington, DC. Attendees will participate in both classroom style educational sessions and meetings on Capitol Hill with key Members of Congress.

The summit will consist of education and informational sessions with outside expert speakers and closed-door discussions amongst the sameday delivery industry in the morning. United States Congressman Dave Reichert (R-WA), United States Congressman Tom Price (R-GA), a representative from the Internal Revenue Service, a representative from the National Federation of Independent Businesses, MCAA leadership, and MCAA’s federal government affairs lobbyist will speak at the event.

In the afternoon, attendees will have pre-scheduled meetings on Capitol Hill with their Members of Congress or appropriate legislative staff person. These meetings will focus on educating Congress on how the sameday delivery industry operates and the challenges it currently faces. After the Capitol Hill meetings have been completed, attendees will be free to leave. Breakfast, lunch, and roundtrip transportation to and from Capitol Hill will be provided.

Beginning with breakfast, the event will last from 7:30am ET to approximately 5:00pm ET. The room block at the Madison Hotel is currently all booked. Other hotels within a couple blocks still have availability. Please feel free to contact the following hotels:

The Westin Hotel
1400 M Street, Northwest
Washington, DC 20005
Phone Number 202-429-1700

Residence Inn by Marriott
1199 Vermont Avenue, Northwest
Washington, DC 20005
Phone Number 202-898-1100

Please contact John Ferraro, MCAA Government Affairs Director, if you have any questions. A registration form is attached.

NEW STATE LEGISLATION

New York Senate Bill 7235 (NEW)
Sponsored by Senator Robach
This legislation establishes a task force to study employment classification and misclassification. The task force shall hold regional public hearings and roundtable discussions to gather information. The bill was introduced on March 21, 2008.
http://www.multistate.com/IndependentContractors.nsf/billdetail?openform&billid=NY+S.B.+7235

UPDATED STATE LEGISLATION

California Senate Bill 1583 (UPDATED)
Sponsored by Senator Corbett
This legislation would provide that a person who advises another person to treat an individual as an independent contractor to avoid employee status shall be jointly and severally liable with the employer if the individual is not found to be an independent contractor. An exemption is included for a licensed attorney who provides legal advice within the scope of his/her license. This bill was sent to the Senate Committee on Judiciary on March 6, 2008. A public hearing has been scheduled for Tuesday April 8, 2008 at 1:00pm in Room 112.
http://www.multistate.com/IndependentContractors.nsf/billdetail?openform&billid=CA+S.B.+1583

Connecticut Senate Bill 56 (UPDATED)
Sponsored by Joint Committee on Labor and Public Employees
This legislation establishes a joint enforcement commission on employee misclassification. It creates a task force to make recommendations to reduce employer's misclassification of employees for the purpose of avoiding paying benefits, fees and taxes. The first report will be published in February 2010. This bill was reported favorable by the Joint Committee on Government Administration and Elections on March 17, 2008. The next day, it was filed with the Legislative Commissioners’ Office.
http://www.multistate.com/IndependentContractors.nsf/billdetail?openform&billid=CT+S.B.+56

Massachusetts House Bill 311 (UPDATED)
Sponsored by Representative Rodrigues
This legislation provides technical changes to the independent contractor definition. As currently written, individuals would only have to meet two parts of the three part ABC test. This bill was introduced and the Joint Committee on Consumer Protection and Professional Licensure held a hearing on the issue in 2007. On March 18, 2008, the Committee recommended the legislation be passed. MCAA continues to work with other organizations in the Massachusetts Independent Contractor Coalition to ensure this legislations passage.
http://www.multistate.com/IndependentContractors.nsf/billdetail?openform&billid=MA+H.B.+311

Minnesota House Bill 3296 (UPDATED)
Sponsored by Representative Johnson
This legislation states that the Commissioner of Employment and Economic Development shall conduct audits of trucking industry employers to determine if there is a pattern of improper classification of owner-operators as independent contractors. The Commissioner shall target audit companies that have been found by courts and regulators in other jurisdictions to have improperly classified owner-operators as independent contractors. As amended, independent contractor status for “Parcel Delivery Drivers” who deliver shipments less than 250 pounds per parcel will be determined by the Common Law Test rather than the more favorable well established six point test. This is the companion bill to Senate Bill 2688, which was introduced in the Senate. This bill was introduced and referred to the House Committee on Commerce and Labor on February 21, 2008. The Committee recommends the bill be passed with amendments.
http://www.multistate.com/IndependentContractors.nsf/billdetail?openform&billid=MN+H.B.+3296
Note: This is a high priority bill. If you have offices in Minnesota and operate under the independent contractor model, this legislation could cause significant negative consequences. Please contact your legislators to voice your opposition to this legislation. In addition, for those companies operating under the employee model, this legislation may also have long range, unforeseen consequences as well. You can find your legislators contact information at the Minnesota State Legislature website: http://www.leg.state.mn.us/

Minnesota Senate Bill 2688 (UPDATED)
Sponsored by Senator Tomassoni
This legislation states that the Commissioner of Employment and Economic Development shall conduct audits of trucking industry employers to determine if there is a pattern of improper classification of owner-operators as independent contractors. The Commissioner shall target audit companies that have been found by courts and regulators in other jurisdictions to have improperly classified owner-operators as independent contractors. A companion bill, House Bill 3296, was introduced into the House. This bill was introduced and referred to the Senate Committee on Business, Industry, and Jobs on February 14, 2008. On March 19, 2008, the legislation passed third reading and has been placed on the Calendar to be brought up before the full Senate.
http://www.multistate.com/IndependentContractors.nsf/billdetail?openform&billid=MN+S.B.+2688

Washington House Bill 3122 (UPDATED)
Sponsored by Representative Conway
This legislation was introduced due to the recommendation of the Joint Legislative Task Force on the Underground Economy in the Construction Industry. This task force was created due to enacted legislation in 2007. Washington State House Bill 3122 aims to consolidate and clarify the definition of an independent contractor for the purposes of workers’ compensation and unemployment compensation by creating a seven-part test. In addition to meeting the requirements of the ABC test for independent contractor determination, an individual must also be responsible for filing a schedule of expenses with the Internal Revenue Service, have a valid certification of registration with the Department of Revenue and other required state agencies, have a Unified Business Identifier number, and maintain a separate set of records. A substitute bill which narrowed the legislation by applying only to the construction industry was agreed upon. This bill passed the full House 92-2 and the full Senate 33-16. The Governor signed the legislation on March 20, 2008.
http://www.multistate.com/IndependentContractors.nsf/billdetail?openform&billid=WA+H.B.+3122

OTHER STATE LEGISLATION

California Senate Bill 1490
Sponsored by Senator Padilla
This legislation states that it is the intent of the California Legislature to address the intentional misclassification of employees as independent contractors. Last year, Senator Padilla introduced Senate Bill 622, which provided harsh penalties for the “intentional” misclassification of independent contractors. Senate Bill 622 was eventually vetoed by the California Governor. This bill was sent to the Senate Committee on Rules on March 6, 2008. Members of the California Employers Coalition will be meeting this week to discuss this legislation.
http://www.multistate.com/IndependentContractors.nsf/billdetail?openform&billid=CA+S.B.+1490

Indiana House Bill 1269

Sponsored by Representative Niezgodski
This legislation aims to address employee classification in the construction industry. It provides that an individual performing services for a contractor is considered to be an employee of the contractor. The exceptions for this provision include meeting the requirements of the ABC test or meeting the requirements of being a legitimate sole proprietor or partnership. The Department of Labor (DOL) has authority to investigate the employment relationship between an individual and a contractor. Provides that a contractor or an agent of the contractor that intentionally fails to properly classify an individual as an employee commits a Class C misdemeanor, and that the second or subsequent intentional violation within five years is a Class D felony. This bill has passed the full House and was referred to the Senate Committee on Pensions and Labor on February 4, 2008.
http://www.multistate.com/IndependentContractors.nsf/billdetail?openform&billid=IN+H.B.+1269

Iowa House Bill 692
Sponsored by Representative Hunter
This legislation requires employers to provide employees with meal and rest periods at specific times during the work day. Management or salary-paid employees are exempt from this requirement. An exemption can also occur if the employer can show that the ordinary nature and circumstance of the work prevents the employer from establishing a regular scheduled meal period. Civil penalties are provided. This bill was carried over from the 2007 Legislative Session. It is currently being examined by a Subcommittee within the House Committee on Labor.
http://www.multistate.com/IndependentContractors.nsf/billdetail?openform&billid=IA+H.B.+692

Kentucky House Bill 654
Sponsored by Representatives Stumbo and Marzian
This legislation aims to stop the misclassification of employees as independent contractors. The Office of Workplace Standards is responsible for enforcing the classification provisions outlined in the bill. This office is required to share misclassification information with other state agencies. Administrative and civil penalties are also provided. This bill was introduced and referred to the House Committee on Labor and Industry on February 28, 2008. Reported favorably out of the House Committee on Labor and Industry and sent to the House Committee on Rules on March 7, 2008. It passed the full House by an 89-7 vote on March 13, 2008 and was sent to the Senate Committee on Economic Development, Tourism, and Labor.
http://www.multistate.com/IndependentContractors.nsf/billdetail?openform&billid=KY+H.B.+654

Kentucky Senate Bill 256
Sponsored by Senator Jones
This legislation aims to prohibit misclassification of employees as independent contractors in the construction industry. It requires the Office of Workplace Standards to post explanatory documents outlining law at each worksite. Records are required to be retained for three years. The Office of Workplace Standards is responsible to enforce the provisions. This bill was introduced on March 6, 2008.
http://www.multistate.com/IndependentContractors.nsf/billdetail?openform&billid=KY+S.B.+256

Maryland House Bill 1590
Sponsored by House Committee on Economic Matters
This legislation aims to prohibit employers from misclassifying employees as independent contractors. It authorizes workers who have been misclassified as employees to bring civil action against the employer. Damages and other penalties are also outlined. This bill was introduced and referred to the House Committee on Economic Matters on March 7, 2008. A public hearing is scheduled for March 20, 2008 at 1:00pm ET.
http://www.multistate.com/IndependentContractors.nsf/billdetail?openform&billid=MD+H.B.+1590

Mississippi Senate Bill 3062
Sponsored by Senator King
This legislation allows independent contractors to have an increased deduction from their gross income equal to one half of the federal self-employment taxes imposed on such an individual for the taxable year. This bill was introduced and referred to the Senate Committee on Finance on February 13, 2008. The bill died in Committee on March 12, 2008.
http://www.multistate.com/IndependentContractors.nsf/billdetail?openform&billid=MS+S.B.+3062

Missouri Senate Bill 929
Sponsored by Senator Green
This legislation aims to bar employers from misclassifying employees as independent contractors. Under this legislation, employers must submit federal IRS 1099 forms to the Department of Revenue. The Department of Labor and Industrial Relations shall establish a complaint form to receive complaints about alleged misclassification of workers. If the department determines, after conducting a review, that an employer appears to have misclassified a worker, it shall forward its determination along with supporting documentation to the Attorney General. If a court determines that an employer has knowingly misclassified a worker, the court shall award penalties up to $50,000 for first time offenders and $100,000 for repeat offenders to the Missouri worker protection fund. This bill was introduced on January 10, 2008. A committee substitute was agreed upon and passed out of the Senate Committee on Small Business, Insurance, and Industrial Relations on February 14, 2008. It has been placed on the calendar to be brought up on the Senate floor.
http://www.multistate.com/IndependentContractors.nsf/billdetail?openform&billid=MO+S.B.+929

Nebraska Legislative Bill 1016
Sponsored by Senator Lathrop
This legislation adopts the Proper Employee Classification Act. Under this legislation, to be considered an independent contractor, the individual must meet these conditions: (1) The individual has been and will continue to be free from control or direction, (2) The individual is engaged in an independently established business, (3) The individual can work for more than one company, (4) The individual furnishes all tools and equipment necessary, and (5) The employer does not represent the individual as an employee to customers. This bill was referred to the Committee on Business and Labor. A public hearing was held on February 11, 2008.
http://www.multistate.com/IndependentContractors.nsf/billdetail?openform&billid=NE+L.B.+1016

New Jersey Assembly Bill 2419
Sponsored by Representative Cohen
This legislation states that a licensed public accountant and an attorney at law will not be liable for damages for any professional advice given regarding the classification of an employee as an independent contractor. This bill was filed on February 28, 2008 but not assigned to a specific committee.
http://www.multistate.com/IndependentContractors.nsf/billdetail?openform&billid=NJ+A.B.+2419

New Jersey Executive Order 96
Sponsored by Office of the Governor
This executive order creates the Governors Advisory Commission on Construction Industry Independent Contractor Reform. The Commission will be created to develop recommendations for addressing the problem of employee misclassification in the construction industry. This executive order was introduced on January 18, 2008.
http://www.multistate.com/IndependentContractors.nsf/billdetail?openform&billid=NJ+E.O.+96

Rhode Island House Bill 7907
Sponsored by Representative Corvese
This legislation attempts to end the practice of misclassifying employees as independent contractors. A worker will be considered an employee unless the individual can meet the requirements of the ABC test. The withholding of taxes will not be considered in the determination of an independent contractor. Penalties are provided ranging up to $5,000 for any offenses. This bill was introduced and referred to the House Committee on Labor on February 26, 2008. This legislation was brought up for consideration on March 13, 2008. The Committee recommended it be held for further study.
http://www.multistate.com/IndependentContractors.nsf/billdetail?openform&billid=RI+H.B.+7907

Rhode Island House Bill 7908
Sponsored by Representative Diaz
This legislation aims to protect temporary employees from being misclassified as independent contractors. An individual is considered an employee unless the factors of the ABC test can be met. The employer is required to give the individual a written job description sheet outlining the duties, employment classification requirements, benefits, job hazards, and work schedule. This bill was introduced and referred to the House Committee on Labor on February 26, 2008. This legislation was brought up for consideration on March 13, 2008. The Committee recommended it be held for further study.
http://www.multistate.com/IndependentContractors.nsf/billdetail?openform&billid=RI+H.B.+7908

Rhode Island Senate Bill 2173
Sponsored by Senator Tassoni
This legislation requires independent contractors and subcontractors to maintain an apprentice training program before bidding on public works contracts. Independent contractors must also classify their workers as employees rather than independent contractors. This bill was introduced and referred to the Senate Committee on Labor on January 31, 2008.
http://www.rilin.state.ri.us//BillText08/SenateText08/S2173.pdf

Vermont House Bill 568
Sponsored by Representative Marcotte
Alters language in Title 21 modifying the treatment of independent contractors in the field of workers' compensation and unemployment insurance. This legislation gives conditions that a worker must demonstrate in order to be classified as an independent contractor by the employer. This bill was referred to the House Committee on Commerce on January 11, 2008.
http://www.multistate.com/IndependentContractors.nsf/billdetail?openform&billid=VT+H.B.+568

Vermont House Bill 799
Sponsored by Representative Kitzmiller
This legislation aims to limit the misclassification of employees by creating a series of factors that must be met in order to be classified as an independent contractor. The bill was introduced on February 1, 2008.
http://www.multistate.com/IndependentContractors.nsf/billdetail?openform&billid=VT+H.B.+799

Vermont House Bill 802
Sponsored by Representative Kitzmiller
This legislation aims to reduce the misclassification of employees. It gives authorization to the Departments of Labor, Banking, Insurance, Securities, and Heath Care Administration to collaborate to adopt rules to address the practice. At a minimum, increased coordination, enforcement, and information sharing agreements should be established. The bill was introduced on February 1, 2008.
http://www.multistate.com/IndependentContractors.nsf/billdetail?openform&billid=VT+H.B.+802

FEDERAL LEGISLATION

United States Senate Bill 2044
Sponsored by Senator Obama
The bill provides changes to the current classification of employees and independent contractors. It would eliminate “safe harbor” provisions in the tax code for independent contractors as well as gives the Department of Labor authority to increase enforcement activities. Also encourages information sharing between the Department of Labor, Department of the Treasury, and state agencies. A number of influential Senate Democrats have cosponsored this harmful legislation. The bill was read twice and referred to the Committee on Finance on September 12, 2007.
http://thomas.loc.gov/cgi-bin/query/z?c110:S.2044: