HB 1752 – AS AMENDED BY THE SENATE
05/03/06 2149s
2006 SESSION
06/04
HOUSE BILL 1752
AN ACT requiring notice regarding the classifications of employee and independent contractor and relative to the definition of employee and clarifying the criteria for exempting workers from employee status.
SPONSORS: Rep. Infantine, Hills 13; Rep. Mooney, Hills 19; Rep. Reardon, Merr 11; Sen. Hassan, Dist 23; Sen. Bragdon, Dist 11
COMMITTEE: Labor, Industrial and Rehabilitative Services
This bill requires that information about the classification of workers as employees or independent contractors be posted as part of the “Know Your Rights” notice in every place of employment.
This bill creates a uniform definition of employee and clarifies the criteria for exempting a worker from employee status.
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Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears [in brackets and struckthrough.]
Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
05/03/06 2149s
06-3043
06/04
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Six
AN ACT requiring notice regarding the classifications of employee and independent contractor and relative to the definition of employee and clarifying the criteria for exempting workers from employee status.
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 Notification, Posting, and Records; Independent Contractor Classification Information Added. Amend RSA 275:49 to read as follows:
275:49 Notification, Posting, and Records. Every employer shall:
I. Notify the employees, at the time of hiring of the rate of pay, and of the day and place of payment;
II. Notify his or her employees of any changes in the arrangements specified above prior to the time of such changes;
III. Make available to his or her employees in writing or through a posted notice maintained in a place accessible to his or her employees employment practices and policies with regard to vacation pay, sick leave, and other fringe benefits;
IV. Furnish each employee with a statement of deductions made from his or her wages under RSA 275:48 for each pay period such deductions are made;
V. Keep posted in a place accessible to his or her employees an abstract of this subdivision furnished by the commissioner which shall include information about the criteria for classifying an employee as an employee or as an independent contractor; and
VI. Make such records of the persons employed by him or her, including wage and hour records, preserve such records for such periods of time, and make such reports therefrom to the commissioner, as the commissioner shall prescribe by regulation as necessary or appropriate for the enforcement of the provisions of this subdivision.
2 Procuring Employment; Imposition of Conditions; Definition of Employee Changed. RSA 275:4, II is repealed and reenacted to read as follows:
II. In this subdivision any person who performs services for pay for an employer is presumed to be an employee. This presumption may be rebutted as specified below. “Employee” means and includes every person who may be permitted, required, or directed by any employer, in consideration of direct or indirect gain or profit, to engage in any employment, but shall not include any person exempted from the definition of employee as stated in RSA 281-A:2, VII(b) or any person who is deemed an independent contractor upon consideration of the following criteria:
(a) The person possesses or has applied for a federal employer identification number or social security number, or in the alternative, has agreed in writing to carry out the responsibilities imposed on employers under this chapter.
(b) The person 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, and the employer does not direct or supervise the means or manner of performance.
(c) The person has control over the time when the work is performed, and the time of performance is not dictated by the employer. However, this shall not prohibit the employer from reaching an agreement with the person as to a completion schedule, range of work hours, and the maximum number of work hours to be provided by the person, and in the case of entertainment, the time such entertainment is to be presented.
(d) 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.
(e) The person holds himself or herself out to be in business for himself or herself.
(f) The person has continuing or recurring business liabilities or obligations.
(g) The success or failure of the person’s business depends on the relationship of business receipts to expenditures.
(h) The person incurs in the first instance the main expenses related to the service or work performed.
(i) The person is responsible for satisfactory completion of work and may be held contractually responsible for failure to complete the work.
(j) The person supplies the principal tools and instrumentalities used in the work, except that the employer may furnish tools or instrumentalities that are unique to the employer’s special requirements or are located on the employer’s premises.
(k) The person is not required to work exclusively for the employer.
3 New Paragraphs; Independent Contractor. Amend RSA 275:4 by inserting after paragraph II the following new paragraphs:
III. The factors set forth in subparagraphs II(a)-(k) shall be considered on a case by case basis, weighing all of the incidents of a given relationship and no one factor shall be outcome determinative. The greater the number of criteria in subparagraphs II(a)-(k) that exist in a given case, the more likely the individual will be deemed an independent contractor.
IV. Prima facie evidence that the criteria prescribed in subparagraphs II(a)-(k) have been met may be established by a written agreement, as set forth below, when signed by the employer and the person providing services, on or about the date such person was engaged, which describes the services to be performed and affirms that such services are to be performed in accordance with at least 7 of the criteria, 5 of which shall be subparagraphs II(a)-(e). Nothing in this paragraph shall require such an agreement to establish that the criteria have been met. Prima facie evidence that the criteria prescribed in subparagraphs II(a)-(k) have been met may also be established by a person’s representations about his or her self-employed status to the United States Internal Revenue Service or other local, state, or federal agencies. If the commissioner finds that the employer’s use of such written agreement was intended to misrepresent the relationship between the employer and the person providing services, the commissioner may assess a civil penalty of up to $2,500 on the employer. All funds collected under this paragraph shall be paid over to the state treasury for deposit into the general fund.
State of New Hampshire Department of Labor
VERIFICATION OF INDEPENDENT CONTRACTOR STATUS
To Be Completed By Independent Contractor At Time of Agreement to Provide Services
Name of Independent
Contractor:_______________________________________________________________________________
Federal Employer Tax ID. #
Or Social Security Number: _______________________________________________________________
Brief Description of
Service(s) you are Providing: ______________________________________________________________
Service(s) Are Being Provided
To: Name and Address Of
Business/Entity __________________________________________________________________________
Check all statements that describe your agreement with the business or entity to whom you are providing services:
(a) I have a federal employer tax identification number or social security number as listed above.
(b) I have control and discretion over the means and manner of performance and I am not directed or supervised by the business or entity.
(c) The time of performance is not dictated to me; or the business or entity and I have reached an agreement as to some or all of the following: completion schedules, range of work hours, maximum number of hours to be worked, and in the case of entertainment, the time such entertainment is to be provided.
(d) I hire and pay assistants, if any, and supervise the details of the assistants’ work, if those assistants are my employees.
(e) I am in business for myself.
(f) The success or failure of my business depends upon the relationship of receipts to expenditures.
(g) I have continuing or recurring business liabilities or obligations.
(h) I am responsible for the expenses related to the service or work performed.
(i) I am responsible for the satisfactory completion of the work and may be contractually responsible for failure to complete the work.
(j) I supply the principal tools/equipment used in the work, with the exception of tools/equipment that are unique to the business or entity’s special requirements or are located on the business or entity’s premises/work site.
(k) I am free to perform services for other businesses/individuals.
IF AT LEAST 7 OF THE LISTED CRITERIA, (5 OF WHICH MUST BE (a)-(e)) ARE CHECKED, PLEASE CONTINUE FILLING OUT THIS FORM.
IF NOT, YOU ARE NOT PROPERLY CLASSIFIED AS AN INDEPENDENT CONTRACTOR.
I certify that I have completed this verification of independent contractor form knowingly and voluntarily and without duress or undue influence. I further certify as follows:
I understand that I am an independent contractor and not an employee of _____________________
(print name of business or entity). I understand that I am responsible to pay applicable state and federal taxes related to the payments I receive for the services provided hereunder.
I understand that as an independent contractor, I may be responsible for purchasing my own workers’ compensation insurance policy. As an independent contractor I am not eligible to receive workers’ compensation insurance coverage or benefits from _____________________(print name of business or entity) or their workers’ compensation insurance carrier.
I understand that as an independent contractor I am not an “employee” as defined under RSA 275:4, II; RSA 275:42, II; RSA 275-E:1, I; RSA 279:1, X; or RSA 281-A:2, VI(b)(1) and therefore I am not protected by/covered under state laws regarding procuring of employment, imposition of conditions, the payment of wages, minimum wage and overtime, whistleblowers’ protection, or workers’ compensation.
I hereby swear and acknowledge that the statements and representations made in this verification of independent contractor status are true and accurate and have been made by me knowingly and voluntarily and without duress or undue influence.
___________________________________ ______________________________________
Signature of Independent Contractor Signature of Business/Entity
___________________________________ ______________________________________
Print Name of Independent Contractor Print Name of Business/Entity
___________________________________ ______________________________________
Date Fed ID # or Soc. Sec. # Date Fed ID # or Soc. Sec. #
In accordance with New Hampshire law: “If the commissioner finds that the employer’s use of such written agreement was intended to misrepresent the relationship between the employer and the person providing services, the commissioner may assess a civil penalty of up to $2,500 on the employer.”
4 Payment of Wages; Definition of Employee Changed. RSA 275:42, II is repealed and reenacted to read as follows:
II. Any person who performs services for pay for an employer is presumed to be an employee. This presumption may be rebutted as specified below. “Employee” means and includes every person who may be permitted, required, or directed by any employer, in consideration of direct or indirect gain or profit, to engage in any employment, but shall not include any person exempted from the definition of employee as stated in RSA 281-A:2, VII(b) or any person who is deemed an independent contractor upon consideration of the following criteria:
(a) The person possesses or has applied for a federal employer identification number or social security number, or in the alternative, has agreed in writing to carry out the responsibilities imposed on employers under this chapter.
(b) The person 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, and the employer does not direct or supervise the means or manner of performance.
(c) The person has control over the time when the work is performed, and the time of performance is not dictated by the employer. However, this shall not prohibit the employer from reaching an agreement with the person as to a completion schedule, range of work hours, and the maximum number of work hours to be provided by the person, and in the case of entertainment, the time such entertainment is to be presented.
(d) 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.
(e) The person holds himself or herself out to be in business for himself or herself.
(f) The person has continuing or recurring business liabilities or obligations.
(g) The success or failure of the person’s business depends on the relationship of business receipts to expenditures.
(h) The person incurs in the first instance the main expenses related to the service or work performed.
(i) The person is responsible for satisfactory completion of work and may be held contractually liable for failure to complete the work.
(j) The person supplies the principal tools and instrumentalities used in the work, except that the employer may furnish tools or instrumentalities that are unique to the employer’s special requirements or are located on the employer’s premises.
(k) The person is not required to work exclusively for the employer.
5 New Paragraphs; Independent Contractor. Amend RSA 275:42 by inserting after paragraph II the following new paragraphs:
II-a. The factors set forth in subparagraphs II(a)-(k) shall be considered on a case by case basis, weighing all of the incidents of a given relationship and no one factor shall be outcome determinative. The greater the number of criteria in subparagraphs II(a)-(k) that exist in a given case, the more likely the individual will be deemed an independent contractor.
II-b. Prima facie evidence that the criteria prescribed in subparagraphs II(a)-(k) have been met may be established by a written agreement, as set forth below when signed by the employer and the person providing services, on or about the date such person was engaged, which describes the services to be performed and affirms that such services are to be performed in accordance with at least 7 of the criteria, 5 of which shall be subparagraphs II(a)-(e). Nothing in this paragraph shall require such an agreement to establish that the criteria have been met. Prima facie evidence that the criteria prescribed in subparagraphs II(a)-(k) have been met may also be established by a person’s representations about his or her self-employed status to the United States Internal Revenue Service or other local, state, or federal agencies. If the commissioner finds that the employer’s use of such written agreement was intended to misrepresent the relationship between the employer and the person providing services, the commissioner may assess a civil penalty of up to $2,500 on the employer. All funds collected under this paragraph shall be paid over to the state treasury for deposit into the general fund.
State of New Hampshire Department of Labor
VERIFICATION OF INDEPENDENT CONTRACTOR STATUS
To Be Completed By Independent Contractor At Time of Agreement to Provide Services
Name of Independent
Contractor:_______________________________________________________________________________
Federal Employer Tax ID. #
Or Social Security Number: _______________________________________________________________
Brief Description of
Service(s) you are Providing: ______________________________________________________________
Service(s) Are Being Provided
To: Name and Address Of
Business/Entity __________________________________________________________________________
Check all statements that describe your agreement with the business or entity to whom you are providing services:
(a) I have a federal employer tax identification number or social security number as listed above.
(b) I have control and discretion over the means and manner of performance and I am not directed or supervised by the business or entity.
(c) The time of performance is not dictated to me; or the business or entity and I have reached an agreement as to some or all of the following: completion schedules, range of work hours, maximum number of hours to be worked, and in the case of entertainment, the time such entertainment is to be provided.
(d) I hire and pay assistants, if any, and supervise the details of the assistants’ work, if those assistants are my employees.
(e) I am in business for myself.
(f) The success or failure of my business depends upon the relationship of receipts to expenditures.
(g) I have continuing or recurring business liabilities or obligations.
(h) I am responsible for the expenses related to the service or work performed.
(i) I am responsible for the satisfactory completion of the work and may be contractually responsible for failure to complete the work.
(j) I supply the principal tools/equipment used in the work, with the exception of tools/equipment that are unique to the business or entity’s special requirements or are located on the business or entity’s premises/work site.
(k) I am free to perform services for other businesses/individuals.
IF AT LEAST 7 OF THE LISTED CRITERIA, (5 OF WHICH MUST BE (a)-(e)) ARE CHECKED, PLEASE CONTINUE FILLING OUT THIS FORM.
IF NOT, YOU ARE NOT PROPERLY CLASSIFIED AS AN INDEPENDENT CONTRACTOR.
I certify that I have completed this verification of independent contractor form knowingly and voluntarily and without duress or undue influence. I further certify as follows:
I understand that I am an independent contractor and not an employee of _____________________
(print name of business or entity). I understand that I am responsible to pay applicable state and federal taxes related to the payments I receive for the services provided hereunder.
I understand that as an independent contractor, I may be responsible for purchasing my own workers’ compensation insurance policy. As an independent contractor I am not eligible to receive workers’ compensation insurance coverage or benefits from _____________________(print name of business or entity) or their workers’ compensation insurance carrier.
I understand that as an independent contractor I am not an “employee” as defined under RSA 275:4, II; RSA 275:42, II; RSA 275-E:1, I; RSA 279:1, X; or RSA 281-A:2, VI(b)(1) and therefore I am not protected by/covered under state laws regarding procuring of employment, imposition of conditions, the payment of wages, minimum wage and overtime, whistleblowers’ protection, or workers’ compensation.
I hereby swear and acknowledge that the statements and representations made in this verification of independent contractor status are true and accurate and have been made by me knowingly and voluntarily and without duress or undue influence.
___________________________________ ______________________________________
Signature of Independent Contractor Signature of Business/Entity
___________________________________ ______________________________________
Print Name of Independent Contractor Print Name of Business/Entity
___________________________________ ______________________________________
Date Fed ID # or Soc. Sec. # Date Fed ID # or Soc. Sec. #
In accordance with New Hampshire law: “If the commissioner finds that the employer’s use of such written agreement was intended to misrepresent the relationship between the employer and the person providing services, the commissioner may assess a civil penalty of up to $2,500 on the employer.”
6 Whistleblowers’ Protection Act; Definition of Employee Changed. RSA 275-E:1, I is repealed and reenacted to read as follows:
I. Any person who performs services for pay for an employer is presumed to be an employee. This presumption may be rebutted as specified below. “Employee” means and includes every person who may be permitted, required, or directed by any employer, in consideration of direct or indirect gain or profit, to engage in any employment, but shall not include any person exempted from the definition of employee as stated in RSA 281-A:2, VII(b) or any person who is deemed an independent contractor upon consideration of the following criteria:
(a) The person possesses or has applied for a federal employer identification number or social security number, or in the alternative, has agreed in writing to carry out the responsibilities imposed on employers under this chapter.
(b) The person 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, and the employer does not direct or supervise the means or manner of performance.
(c) The person has control over the time when the work is performed, and the time of performance is not dictated by the employer. However, this shall not prohibit the employer from reaching an agreement with the person as to a completion schedule, range of work hours, and the maximum number of work hours to be provided by the person, and in the case of entertainment, the time such entertainment is to be presented.
(d) 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.
(e) The person holds himself or herself out to be in business for himself or herself.
(f) The person has continuing or recurring business liabilities or obligations.
(g) The success or failure of the person’s business depends on the relationship of business receipts to expenditures.
(h) The person incurs in the first instance the main expenses related to the service or work performed.
(i) The person is responsible for satisfactory completion of work and may be held contractually responsible for failure to complete the work.
(j) The person supplies the principal tools and instrumentalities used in the work, except that the employer may furnish tools or instrumentalities that are unique to the employer’s special requirements or are located on the employer’s premises.
(k) The person is not required to work exclusively for the employer.
7 New Paragraphs; Independent Contractor. Amend RSA 275-E:1 by inserting after paragraph I the following new paragraphs:
I-a. The factors set forth in subparagraphs I(a)-(k) shall be considered on a case by case basis, weighing all of the incidents of a given relationship and no one factor shall be outcome determinative. The greater the number of criteria in subparagraphs I(a)-(k) that exist in a given case, the more likely the individual will be deemed an independent contractor.
I-b. Prima facie evidence that the criteria prescribed in subparagraphs I(a)-(k) have been met may be established by a written agreement, as set forth below when signed by the employer and the person providing services, on or about the date such person was engaged, which describes the services to be performed and affirms that such services are to be performed in accordance with at least 7 of the criteria, 5 of which shall be subparagraphs I(a)-(e). Nothing in this paragraph shall require such an agreement to establish that the criteria have been met. Prima facie evidence that the criteria prescribed in subparagraphs I(a)-(k) have been met may also be established by a person’s representations about his or her self-employed status to the United States Internal Revenue Service or other local, state, or federal agencies. If the commissioner finds that the employer’s use of such written agreement was intended to misrepresent the relationship between the employer and the person providing services, the commissioner may assess a civil penalty of up to $2,500 on the employer. All funds collected under this paragraph shall be paid over to the state treasury for deposit into the general fund.
State of New Hampshire Department of Labor
VERIFICATION OF INDEPENDENT CONTRACTOR STATUS
To Be Completed By Independent Contractor At Time of Agreement to Provide Services
Name of Independent
Contractor:_______________________________________________________________________________
Federal Employer Tax ID. #
Or Social Security Number: _______________________________________________________________
Brief Description of
Service(s) you are Providing: ______________________________________________________________
Service(s) Are Being Provided
To: Name and Address Of
Business/Entity __________________________________________________________________________
Check all statements that describe your agreement with the business or entity to whom you are providing services:
(a) I have a federal employer tax identification number or social security number as listed above.
(b) I have control and discretion over the means and manner of performance and I am not directed or supervised by the business or entity.
(c) The time of performance is not dictated to me; or the business or entity and I have reached an agreement as to some or all of the following: completion schedules, range of work hours, maximum number of hours to be worked, and in the case of entertainment, the time such entertainment is to be provided.
(d) I hire and pay assistants, if any, and supervise the details of the assistants’ work, if those assistants are my employees.
(e) I am in business for myself.
(f) The success or failure of my business depends upon the relationship of receipts to expenditures.
(g) I have continuing or recurring business liabilities or obligations.
(h) I am responsible for the expenses related to the service or work performed.
(i) I am responsible for the satisfactory completion of the work and may be contractually responsible for failure to complete the work.
(j) I supply the principal tools/equipment used in the work, with the exception of tools/equipment that are unique to the business or entity’s special requirements or are located on the business or entity’s premises/work site.
(k) I am free to perform services for other businesses/individuals.
IF AT LEAST 7 OF THE LISTED CRITERIA, (5 OF WHICH MUST BE (a)-(e)) ARE CHECKED, PLEASE CONTINUE FILLING OUT THIS FORM.
IF NOT, YOU ARE NOT PROPERLY CLASSIFIED AS AN INDEPENDENT CONTRACTOR.
I certify that I have completed this verification of independent contractor form knowingly and voluntarily and without duress or undue influence. I further certify as follows:
I understand that I am an independent contractor and not an employee of _____________________
(print name of business or entity). I understand that I am responsible to pay applicable state and federal taxes related to the payments I receive for the services provided hereunder.
I understand that as an independent contractor, I may be responsible for purchasing my own workers’ compensation insurance policy. As an independent contractor I am not eligible to receive workers’ compensation insurance coverage or benefits from _____________________(print name of business or entity) or their workers’ compensation insurance carrier.
I understand that as an independent contractor I am not an “employee” as defined under RSA 275:4, II; RSA 275:42, II; RSA 275-E:1, I; RSA 279:1, X; or RSA 281-A:2, VI(b)(1) and therefore I am not protected by/covered under state laws regarding procuring of employment, imposition of conditions, the payment of wages, minimum wage and overtime, whistleblowers’ protection, or workers’ compensation.
I hereby swear and acknowledge that the statements and representations made in this verification of independent contractor status are true and accurate and have been made by me knowingly and voluntarily and without duress or undue influence.
___________________________________ ______________________________________
Signature of Independent Contractor Signature of Business/Entity
___________________________________ ______________________________________
Print Name of Independent Contractor Print Name of Business/Entity
___________________________________ ______________________________________
Date Fed ID # or Soc. Sec. # Date Fed ID # or Soc. Sec. #
In accordance with New Hampshire law: “If the commissioner finds that the employer’s use of such written agreement was intended to misrepresent the relationship between the employer and the person providing services, the commissioner may assess a civil penalty of up to $2,500 on the employer.”
8 Minimum Wage Law; Definition of Employee Changed. RSA 279:1, X is repealed and reenacted to read as follows:
X. Any person who performs services for pay for an employer is presumed to be an employee. This presumption may be rebutted as specified below. “Employee” means and includes every person who may be permitted, required, or directed by any employer, in consideration of direct or indirect gain or profit, to engage in any employment, but shall not include any person exempted from the definition of employee as stated in RSA 281-A:2, VII(b) or any person who is deemed an independent contractor upon consideration of the following criteria:
(a) The person possesses or has applied for a federal employer identification number or social security number, or in the alternative, has agreed in writing to carry out the responsibilities imposed on employers under this chapter.
(b) The person 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, and the employer does not direct or supervise the means or manner of performance.
(c) The person has control over the time when the work is performed, and the time of performance is not dictated by the employer. However, this shall not prohibit the employer from reaching an agreement with the person as to a completion schedule, range of work hours, and the maximum number of work hours to be provided by the person, and in the case of entertainment, the time such entertainment is to be presented.
(d) 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.
(e) The person holds himself or herself out to be in business for himself or herself.
(f) The person has continuing or recurring business liabilities or obligations.
(g) The success or failure of the person’s business depends on the relationship of business receipts to expenditures.
(h) The person incurs in the first instance the main expenses related to the service or work performed.
(i) The person is responsible for satisfactory completion of work and may be held contractually responsible for failure to complete the work.
(j) The person supplies the principal tools and instrumentalities used in the work, except that the employer may furnish tools or instrumentalities that are unique to the employer’s special requirements or are located on the employer’s premises.
(k) The person is not required to work exclusively for the employer.
9 New Paragraphs; Independent Contractor. Amend RSA 279:1 by inserting after paragraph X the following new paragraphs:
X-a. The factors set forth in subparagraphs X(a)-(k) shall be considered on a case by case basis, weighing all of the incidents of a given relationship and no one factor shall be outcome determinative. The greater the number of criteria in subparagraphs X(a)-(k) that exist in a given case, the more likely the individual will be deemed an independent contractor.
X-b. Prima facie evidence that the criteria prescribed in subparagraphs X(a)-(k) have been met may be established by a written agreement, as set forth below when signed by the employer and the person providing services, on or about the date such person was engaged, which describes the services to be performed and affirms that such services are to be performed in accordance with at least 7 of the criteria, 5 of which shall be subparagraphs X(a)-(e). Nothing in this paragraph shall require such an agreement to establish that the criteria have been met. Prima facie evidence that the criteria prescribed in subparagraphs X(a)-(k) have been met may also be established by a person’s representations about his or her self-employed status to the United States Internal Revenue Service or other local, state, or federal agencies. If the commissioner finds that the employer’s use of such written agreement was intended to misrepresent the relationship between the employer and the person providing services, the commissioner may assess a civil penalty of up to $2,500 on the employer. All funds collected under this paragraph shall be paid over to the state treasury for deposit into the general fund.
State of New Hampshire Department of Labor
VERIFICATION OF INDEPENDENT CONTRACTOR STATUS
To Be Completed By Independent Contractor At Time of Agreement to Provide Services
Name of Independent
Contractor:_______________________________________________________________________________
Federal Employer Tax ID. #
Or Social Security Number: _______________________________________________________________
Brief Description of
Service(s) you are Providing: ______________________________________________________________
Service(s) Are Being Provided
To: Name and Address Of
Business/Entity __________________________________________________________________________
Check all statements that describe your agreement with the business or entity to whom you are providing services:
(a) I have a federal employer tax identification number or social security number as listed above.
(b) I have control and discretion over the means and manner of performance and I am not directed or supervised by the business or entity.
(c) The time of performance is not dictated to me; or the business or entity and I have reached an agreement as to some or all of the following: completion schedules, range of work hours, maximum number of hours to be worked, and in the case of entertainment, the time such entertainment is to be provided.
(d) I hire and pay assistants, if any, and supervise the details of the assistants’ work, if those assistants are my employees.
(e) I am in business for myself.
(f) The success or failure of my business depends upon the relationship of receipts to expenditures.
(g) I have continuing or recurring business liabilities or obligations.
(h) I am responsible for the expenses related to the service or work performed.
(i) I am responsible for the satisfactory completion of the work and may be contractually responsible for failure to complete the work.
(j) I supply the principal tools/equipment used in the work, with the exception of tools/equipment that are unique to the business or entity’s special requirements or are located on the business or entity’s premises/work site.
(k) I am free to perform services for other businesses/individuals.
IF AT LEAST 7 OF THE LISTED CRITERIA, (5 OF WHICH MUST BE (a)-(e)) ARE CHECKED, PLEASE CONTINUE FILLING OUT THIS FORM.
IF NOT, YOU ARE NOT PROPERLY CLASSIFIED AS AN INDEPENDENT CONTRACTOR.
I certify that I have completed this verification of independent contractor form knowingly and voluntarily and without duress or undue influence. I further certify as follows:
I understand that I am an independent contractor and not an employee of _____________________
(print name of business or entity). I understand that I am responsible to pay applicable state and federal taxes related to the payments I receive for the services provided hereunder.
I understand that as an independent contractor, I may be responsible for purchasing my own workers’ compensation insurance policy. As an independent contractor I am not eligible to receive workers’ compensation insurance coverage or benefits from _____________________(print name of business or entity) or their workers’ compensation insurance carrier.
I understand that as an independent contractor I am not an “employee” as defined under RSA 275:4, II; RSA 275:42, II; RSA 275-E:1, I; RSA 279:1, X; or RSA 281-A:2, VI(b)(1) and therefore I am not protected by/covered under state laws regarding procuring of employment, imposition of conditions, the payment of wages, minimum wage and overtime, whistleblowers’ protection, or workers’ compensation.
I hereby swear and acknowledge that the statements and representations made in this verification of independent contractor status are true and accurate and have been made by me knowingly and voluntarily and without duress or undue influence.
___________________________________ ______________________________________
Signature of Independent Contractor Signature of Business/Entity
___________________________________ ______________________________________
Print Name of Independent Contractor Print Name of Business/Entity
___________________________________ ______________________________________
Date Fed ID # or Soc. Sec. # Date Fed ID # or Soc. Sec. #
In accordance with New Hampshire law: “If the commissioner finds that the employer’s use of such written agreement was intended to misrepresent the relationship between the employer and the person providing services, the commissioner may assess a civil penalty of up to $2,500 on the employer.”
10 Workers’ Compensation; Definition of Employee Changed. RSA 281-A:2, VI(b)(1) is repealed and reenacted to read as follows:
(b)(1)(A) Subject to the preceding subparagraph, any person, other than a direct seller or qualified real estate broker or agent or real estate appraiser, who performs services for pay for an employer, is presumed to be an employee. This presumption may be rebutted by proof that an individual is deemed an independent contractor upon consideration of the following criteria:
(i) The person possesses or has applied for a federal employer identification number or social security number, or in the alternative, has agreed in writing to carry out the responsibilities imposed on employers under this chapter.
(ii) The person 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, and the employer does not direct or supervise the means or manner of performance.
(iii) The person has control over the time when the work is performed, and the time of performance is not dictated by the employer. However, this shall not prohibit the employer from reaching an agreement with the person as to a completion schedule, range of work hours, and the maximum number of work hours to be provided by the person, and in the case of entertainment, the time such entertainment is to be presented.
(iv) 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.
(v) The person holds himself or herself out to be in business for himself or herself.
(vi) The person has continuing or recurring business liabilities or obligations.
(vii) The success or failure of the person’s business depends on the relationship of business receipts to expenditures.
(viii) The person incurs in the first instance the main expenses related to the service or work performed.
(ix) The person is responsible for satisfactory completion of work and may be held contractually responsible for failure to complete the work.
(x) The person supplies the principal tools and instrumentalities used in the work, except that the employer may furnish tools or instrumentalities that are unique to the employer’s special requirements or are located on the employer’s premises.
(xi) The person is not required to work exclusively for the employer.
(B) The factors set forth in subparagraphs VI(b)(1)(A)(i)-(xi) shall be considered on a case by case basis, weighing all of the incidents of a given relationship and no one factor shall be outcome determinative. The greater the number of criteria in subparagraphs VI(b)(1)(A)(i)-(xi) that exist in a given case, the more likely the individual will be deemed an independent contractor.
11 Workers’ Compensation; Definition of Employee; Reference Changed. RSA 281-A:2, VI(c) is repealed and reenacted to read as follows:
(c) Prima facie evidence that the criteria prescribed in RSA 281-A:2, VI(b)(1)(A)(i)-(xi) have been met may be established by a written agreement as set forth below when signed by the employer and the person providing services, on or about the date such person was engaged, which describes the services to be performed and affirms that such services are to be performed in accordance with at least 7 of the criteria, 5 of which shall be subparagraphs VI(b)(1)(A)(i)-(v). Nothing in this paragraph shall require such an agreement to establish that the criteria have been met. Prima facie evidence that the criteria prescribed in subparagraphs VI(b)(1)(A)(i)-(xi) have been met may also be established by a person’s representations about his or her self-employed status to the United States Internal Revenue Service or other local, state, or federal agencies. If the commissioner finds that the employer’s use of such written agreement was intended to misrepresent the relationship between the employer and the person providing services, the commissioner may assess a civil penalty of up to $2,500 on the employer. All funds collected under this paragraph shall be paid over to the state treasury for deposit into the general fund.
State of New Hampshire Department of Labor
VERIFICATION OF INDEPENDENT CONTRACTOR STATUS
To Be Completed By Independent Contractor At Time of Agreement to Provide Services
Name of Independent
Contractor:_______________________________________________________________________________
Federal Employer Tax ID. #
Or Social Security Number: _______________________________________________________________
Brief Description of
Service(s) you are Providing: ______________________________________________________________
Service(s) Are Being Provided
To: Name and Address Of
Business/Entity __________________________________________________________________________
Check all statements that describe your agreement with the business or entity to whom you are providing services:
(a) I have a federal employer tax identification number or social security number as listed above.
(b) I have control and discretion over the means and manner of performance and I am not directed or supervised by the business or entity.
(c) The time of performance is not dictated to me; or the business or entity and I have reached an agreement as to some or all of the following: completion schedules, range of work hours, maximum number of hours to be worked, and in the case of entertainment, the time such entertainment is to be provided.
(d) I hire and pay assistants, if any, and supervise the details of the assistants’ work, if those assistants are my employees.
(e) I am in business for myself.
(f) The success or failure of my business depends upon the relationship of receipts to expenditures.
(g) I have continuing or recurring business liabilities or obligations.
(h) I am responsible for the expenses related to the service or work performed.
(i) I am responsible for the satisfactory completion of the work and may be contractually responsible for failure to complete the work.
(j) I supply the principal tools/equipment used in the work, with the exception of tools/equipment that are unique to the business or entity’s special requirements or are located on the business or entity’s premises/work site.
(k) I am free to perform services for other businesses/individuals.
IF AT LEAST 7 OF THE LISTED CRITERIA, (5 OF WHICH MUST BE (a)-(e)) ARE CHECKED, PLEASE CONTINUE FILLING OUT THIS FORM.
IF NOT, YOU ARE NOT PROPERLY CLASSIFIED AS AN INDEPENDENT CONTRACTOR.
I certify that I have completed this verification of independent contractor form knowingly and voluntarily and without duress or undue influence. I further certify as follows:
I understand that I am an independent contractor and not an employee of _____________________
(print name of business or entity). I understand that I am responsible to pay applicable state and federal taxes related to the payments I receive for the services provided hereunder.
I understand that as an independent contractor, I may be responsible for purchasing my own workers’ compensation insurance policy. As an independent contractor I am not eligible to receive workers’ compensation insurance coverage or benefits from _____________________(print name of business or entity) or their workers’ compensation insurance carrier.
I understand that as an independent contractor I am not an “employee” as defined under RSA 275:4, II; RSA 275:42, II; RSA 275-E:1, I; RSA 279:1, X; or RSA 281-A:2, VI(b)(1) and therefore I am not protected by/covered under state laws regarding procuring of employment, imposition of conditions, the payment of wages, minimum wage and overtime, whistleblowers’ protection, or workers’ compensation.
I hereby swear and acknowledge that the statements and representations made in this verification of independent contractor status are true and accurate and have been made by me knowingly and voluntarily and without duress or undue influence.
___________________________________ ______________________________________
Signature of Independent Contractor Signature of Business/Entity
___________________________________ ______________________________________
Print Name of Independent Contractor Print Name of Business/Entity
___________________________________ ______________________________________
Date Fed ID # or Soc. Sec. # Date Fed ID # or Soc. Sec. #
In accordance with New Hampshire law: “If the commissioner finds that the employer’s use of such written agreement was intended to misrepresent the relationship between the employer and the person providing services, the commissioner may assess a civil penalty of up to $2,500 on the employer.”
12 Effective Date.
I. Section 1 of this act shall take effect 60 days after its passage.
II. The remainder of this act shall take effect January 1, 2007.