Employee or Independent Contractor?

West Virginia Senate approves independent contractor bill by one vote, detractors say the bill oppresses employees

West Virginia

From the Charleston Gazette-Mail, Lacie Pierson reports that the West Virginia Senate narrowly passed a bill that intends to simply the classification of workers as independent contractors. Lacie writes:

By one vote the West Virginia Senate on Monday passed a bill that seeks to simplify the relationship between independent contractors and employees.

However, opponents of the bill say it’s an attempt let some employers off the hook and suppress West Virginians’ access to protections under workers’ compensation and unemployment laws.

The Senate passed Senate Bill 528, also known as the Uniform Worker Classification Act, in a 17-16 vote with one senator absent.

If it becomes law, the bill will set up what Senate Judiciary Chairman Charles Trump called a “fairly bright line test” to determine when someone is classified as a full-time employee versus an independent contractor.

The thinking behind the bill is to clarify the definition of an independent contractor that currently has different interpretations in West Virginia’s workers’ compensation and unemployment laws as well as the West Virginia Human Rights Act and the West Virginia Wage Payment and Collection Act, said Trump, R-Morgan.

Read the full story at Senate approves independent contractor bill by one vote, detractors say the bill oppresses employees | Legislative Session | wvgazettemail.com

The text of Senate Bill 528 adopts the following standard for independent contractors.

§21-5I-4. Classification of independent contractors and employees.

(a) Subject only to the provisions of subsection (b) of this section, a person shall be classified as an independent contractor under the laws of this state concerning workers’ compensation in chapter 23 of this code, unemployment compensation in chapter 21A of this code, Human Rights Act rights in §5-11-1 et seq. of this code, and wage payment and collection in §21-5-1 et seq. of this code, if:

(1) The person signs a written contract with the principal, in substantial compliance with the terms of this subsection, that states the principal’s intent to engage the services of the person as an independent contractor and contains acknowledgements that the person understands that he or she is:

(A) Providing services for the principal as an independent contractor; and

(B) Not going to be treated as an employee of the principal; and

(C) Not going to be provided by the principal with either workers’ compensation or unemployment compensation benefits; and

(D) Obligated to pay all applicable federal and state income taxes, if any, on any monies earned pursuant to the contractual relationship, and that the principal will not make any tax withholdings from any payments from the principal; and

(E) Responsible for the majority of supplies and other variable expenses that he or she incurs in connection with performing the contracted for services unless: The expenses are for travel that is not local; the expenses are reimbursed under an express provision of the contract; or the supplies, or expenses reimbursed are commonly reimbursed under industry practice; and

(2) The person:

(A) Has either filed, or is contractually required to file, in regard to the fees earned from the work, an income tax return with the appropriate federal, state, and local agencies for a business or for earnings from self-employment; or

(B) Provides his or her services through a business entity, including, but not limited to, a partnership, limited liability company or corporation, or through a sole proprietorship registered with a “doing business as” as required under state or local law; and

(3) With the exception of the exercise of control necessary to ensure compliance with statutory, regulatory, licensing, permitting, or other similar obligations required by a governmental or regulatory entity, or to protect persons or property, or to protect a franchise brand, the person  actually and directly controls the manner and means by which the work is to be accomplished, even though he or she may not have control over the final result of the work. This provision is satisfied even though the principal may provide orientation, information, guidance, or suggestions about the principal’s products, business, services, customers and operating systems, and training otherwise required by law; and

(4) The person satisfies three or more of the following criteria:

(A) Except for an agreement with the principal relating to final completion or final delivery time or schedule, range of work hours, or the time entertainment is to be presented if the work contracted for is entertainment, the person has control over the amount of time personally spent providing services;

(B) Except for services that can only be performed at specific locations, the person has control over where the services are performed;

(C) The person is not required to work exclusively for one principal unless:

(i) A law, regulation, or ordinance prohibits the person from providing services to more than one principal; or

(ii) A license or permit that the person is required to maintain in order to perform the work limits the person to working for only one principal at a time or requires identification of the principal;

(D) The person is free to exercise independent initiative in soliciting others to purchase his or her services;

(E) The person is free to hire employees or to contract with assistants, helpers, or substitutes to perform all or some of the work;

(F) The person cannot be required to perform additional services without a new or modified contract;

(G) The person obtains a license or other permission from the principal to utilize any workspace of the principal in order to perform the work for which the person was engaged;

(H) The principal has been subject to an employment audit by the Internal Revenue Service (IRS) and the IRS has not reclassified the person to be an employee or has not reclassified the category of workers to be employees; or

(I) The person is responsible for maintaining and bearing the costs of any required business licenses, insurance, certifications, or permits required to perform the services.

(b) All workers who do not satisfy the criteria set forth in subsection (a) of this section shall be classified as employees concerning workers’ compensation in chapter 23 of this code, unemployment compensation in chapter 21A of this code, Human Rights Act rights in §5-11-1 et seq. of this code, and wage payment and collection in §21-5-1 et seq. of this code. In addition, nothing contained in said subsection requires a principal to classify a worker who meets the criteria contained therein as an independent contractor, the principal always being free to hire the worker as an employee.

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