Maine’s new definition of an independent contractor applies to unemployment, wage and hour and worker’s compensation cases according to the State Department of Labor Press Release
The new independent contractor definition goes into effect Dec. 31, 2012, replacing the current definitions under both the Workers’ Compensation Act and the Maine Department of Labor. Both agencies will operate under the same definition for all cases originating after the effective date.
This new law clarifies the conditions under which a worker should be classified as an employee or as an independent contractor. The independent contractor standard will be applied uniformly in the unemployment, wage and hour and worker’s compensation laws.
Under the new law, both the Maine Workers’ Compensation Board and the Maine Department of Labor will use the new standard to determine whether a person who performs services for payment is an employee or an independent contractor. Independent contractors must be free from the essential direction and control of the employing party and meet several other criteria.
Also included in this new law are clear penalties to deter the intentional misclassification of workers as independent contractors when they are employees per the standard. This practice not only creates a competitive disadvantage for those employers who correctly classify their workers but also increases unemployment tax premiums because fewer employers are paying appropriate taxes. Therefore, the new law includes penalties ranging up to $10,000 to deter this practice.
The criteria of the new law:
Services performed by an individual for remuneration are considered to be employment subject to this chapter unless it is shown to the satisfaction of the agency that the individual is free from the essential direction and control of the employing unit, both under the individual’s contract of service and in fact, the employing unit proves that the individual meets all of the criteria in Section A and three (3) of the criteria in Section B.
Required Criteria (all criteria must be met)
1. The person has the essential right to control the means and progress of the work except as to final results;
2. The person is customarily engaged in an independently established trade, occupation, profession or business;
3. The person has the opportunity for profit and loss as a result of the services being performed for the other individual or entity;
4. The person hires and pays the person’s assistants, if any, and, to the extent such assistants are employees, supervises the details of the assistants’ work; and
5. The person makes the person’s services available to some client or customer community, even if the person’s right to do so is voluntarily not exercised or is temporarily restricted.
Disjunctive Criteria (at least three (3) of the following seven (7) criteria must be met)
1. The person has a substantive investment in the facilities, tools, instruments, materials and knowledge used by the person to complete the work;
2. The person is not required to work exclusively for the other individual or entity;
3. The person is responsible for satisfactory completion of the work and may be held contractually responsible for failure to complete the work;
4. The parties have a contract that defines the relationship and gives contractual rights in the event the contract is terminated by the other individual or entity prior to completion of the work;
5. Payment to the person is based on factors directly related to the work performed and not solely on the amount of time expended by the person;
6. The work is outside the usual course of business for which the service is performed; or
7. The person has been determined to be an independent contractor by the federal Internal Revenue Service.