HB 1512 - AS INTRODUCED
2016 SESSION
\t16-2654
\t01/05
HOUSE BILL\t1512
AN ACT\trelative to the definition of "employee" for the purposes of workers' compensation and unemployment compensation.
SPONSORS:\tRep. Murphy, Hills. 7
COMMITTEE:\tLabor, Industrial and Rehabilitative Services
-----------------------------------------------------------------
ANALYSIS
\tThis bill clarifies the definition of "employee" for purposes of determining an independent contractor.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Explanation:\tMatter added to current law appears in bold italics.
\t\tMatter removed from current law appears [in brackets and struckthrough.]
\t\tMatter which is either (a) all new or (b) repealed and reenacted appears in regular type.
\t16-2654
\t01/05
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Sixteen
AN ACT\trelative to the definition of "employee" for the purposes of workers' compensation and unemployment compensation.
Be it Enacted by the Senate and House of Representatives in General Court convened:
\t1 New Section; Department of Labor; Collateral Estoppel. Amend RSA 273 by inserting after section 11-d the following new section:
\t273:11-e Collateral Estoppel. Decisions rendered under this chapter and RSA 281-A shall not be admissible in any court or in administrative or other proceedings, for the purpose of barring such court or proceeding from making independent findings of fact and rulings of law under the doctrine of collateral estoppel.
\t2 Procurement of Employment; Definitions. RSA 275:4, II is repealed and reenacted to read as follows:
\t\tII. “Employee” means every individual, other than a person exempted from the definition of employee under RSA 281-A:2, VI(b)(2), (3), or (4), or RSA 281-A:2, VII(b), or a person providing services as part of a residential placement for individuals with developmental, acquired, or emotional disabilities, who may be permitted, required, or directed by a single employer, in consideration of direct or indirect gain or profit, to provide services, unless this presumption is rebutted to the satisfaction of the commissioner that the individual is an independent contractor, both under the individual’s contract of service and in fact, and the hiring unit proves that the individual meets all the criteria in subparagraph (a) and 3 of the criteria in subparagraph (b).
\t\t\t(a) The following criteria shall be met:
\t\t\t\t(1) The individual has the essential right to control the detailed means and manner of the work except as to final results;
\t\t\t\t(2) The individual has the opportunity for profit and loss as a result of the services being performed;
\t\t\t\t(3) The individual performs services that the individual is customarily engaged in as an independently established trade, occupation, profession, or business. This subparagraph may be met even when the individual performs services for only one hiring unit, or for 2 or more related hiring units, during one temporary period not to exceed 6 months, if:
\t\t\t\t\t(A) The individual is not contractually or practically precluded by such hiring unit, or any related hiring units, from performing similar services for a different, unrelated hiring unit; and
\t\t\t\t\t(B) It is the individual’s choice not to make available or perform similar services for different, unrelated hiring units;
\t\t\t\t(4) The individual hires and pays the individual’s assistants, if any, and, to the extent such assistants are employees, supervises the details of the assistants’ work; and
\t\t\t\t(5) Payment to the individual is based on factors directly related to the agreed scope of work performed.
\t\t\t(b) At least 3 of the following criteria shall also be met:
\t\t\t\t(1) The individual has a substantive investment in the facilities, tools, instruments, materials, and knowledge used by the individual to complete the work;
\t\t\t\t(2) The individual is responsible for satisfactory completion of the work and may be held contractually responsible for failure to complete the work;
\t\t\t\t(3) The parties have a written contract that defines the relationship and gives each party contractual rights in the event the contract is terminated by the other party prior to completion of the work;
\t\t\t\t(4) The work is outside the usual course of business of the hiring unit;
\t\t\t\t(5) The work is performed outside all of the places of business of the hiring unit; or
\t\t\t\t(6) The individual has been determined to be an independent contractor by the federal Internal Revenue Service (an SS-8 determination).
\t3 Payment of Wages; Definitions. RSA 275:42, II is repealed and reenacted to read as follows:
\t\tII. "Employee" means every individual, other than a person exempted from the definition of employee as stated in RSA 281-A:2, VI(b)(2), (3), or (4), or RSA 281-A:2, VII(b), or a person providing services as part of a residential placement for individuals with developmental, acquired, or emotional disabilities, who may be permitted, required, or directed by a single employer, in consideration of direct or indirect gain or profit, to provide services, unless this presumption is rebutted to the satisfaction of the commissioner that the individual is an independent contractor, both under the individual’s contract of service and in fact, and the hiring unit proves that the individual meets all of the criteria in subparagraph (a) and 3 of the criteria in subparagraph (b).
\t\t\t(a) The following criteria shall be met:
\t\t\t\t(1) The individual has the essential right to control the detailed means and manner of the work except as to final results;
\t\t\t\t(2) The individual has the opportunity for profit and loss as a result of the services being performed;
\t\t\t\t(3) The individual performs services that the individual is customarily engaged in as an independently established trade, occupation, profession, or business. This subparagraph may be met even when the individual performs services for only one hiring unit, or for 2 or more related hiring units, during one temporary period not to exceed 6 months, if:
\t\t\t\t\t(A) The individual is not contractually or practically precluded by such hiring unit, or any related hiring units, from performing similar services for a different, unrelated hiring unit; and
\t\t\t\t\t(B) It is the individual’s choice not to make available or perform similar services for different, unrelated hiring units;
\t\t\t\t(4) The individual hires and pays the individual’s assistants, if any, and, to the extent such assistants are employees, supervises the details of the assistants’ work; and
\t\t\t\t(5) Payment to the individual is based on factors directly related to the agreed scope of work performed.
\t\t\t(b) At least three 3 of the following criteria shall also be met:
\t\t\t\t(1) The individual has a substantive investment in the facilities, tools, instruments, materials, and knowledge used by the individual to complete the work;
\t\t\t\t(2) The individual is responsible for satisfactory completion of the work and may be held contractually responsible for failure to complete the work;
\t\t\t\t(3) The parties have a written contract that defines the relationship and gives each party contractual rights in the event the contract is terminated by the other party prior to completion of the work:
\t\t\t\t(4) The work is outside the usual course of business of the hiring unit;
\t\t\t\t(5) The work is performed outside all of the places of business of the hiring unit; or
\t\t\t\t(6) The individual has been determined to be an independent contractor by the federal Internal Revenue Service (an SS-8 determination).
\t4 Whistleblowers’ Protection Act; Definitions. RSA 275-E:1, I is repealed and reenacted to read as follows:
\t\tI. “Employee” means every individual, other than a person exempted from the definition of employee as stated in RSA 281-A:2, VI(b)(2), (3), or (4), or RSA 281-A:2, VII(b), or a person providing services as part of a residential placement for individuals with developmental, acquired, or emotional disabilities, who may be permitted, required, or directed by a single employer, in consideration of direct or indirect gain or profit, to provide services, unless this presumption is rebutted to the satisfaction of the commissioner that the individual is an independent contractor, both under the individual’s contract of service and in fact, and the hiring unit proves that the individual meets all of the criteria in subparagraph (a) and 3 of the criteria in subparagraph (b).
\t\t\t(a) The following criteria shall be met:
\t\t\t\t(1) The individual has the essential right to control the detailed means and manner of the work except as to final results;
\t\t\t\t(2) The individual has the opportunity for profit and loss as a result of the services being performed;
\t\t\t\t(3) The individual performs services that the individual is customarily engaged in as an independently established trade, occupation, profession, or business. This subparagraph may be met even when the individual performs services for only one hiring unit, or for 2 or more related hiring units, during one temporary period not to exceed 6 months, if:
\t\t\t\t\t(A) The individual is not contractually or practically precluded by such hiring unit, or any related hiring units, from performing similar services for a different, unrelated hiring unit; and
\t\t\t\t\t(B) It is the individual’s choice not to make available or perform similar services for different, unrelated hiring units;
\t\t\t\t(4) The individual hires and pays the individual’s assistants, if any, and, to the extent such assistants are employees, supervises the details of the assistants’ work; and
\t\t\t\t(5) Payment to the individual is based on factors directly related to the agreed scope of work performed.
\t\t\t(b) At least 3 of the following criteria shall also be met:
\t\t\t\t(1) The individual has a substantive investment in the facilities, tools, instruments, materials, and knowledge used by the individual to complete the work;
\t\t\t\t(2) The individual is responsible for satisfactory completion of the work and may be held contractually responsible for failure to complete the work;
\t\t\t\t(3) The parties have a written contract that defines the relationship and gives each party contractual rights in the event the contract is terminated by the other prior to completion of the work;
\t\t\t\t(4) The work is outside the usual course of business of the hiring unit;
\t\t\t\t(5) The work is performed outside all of the places of business of the hiring unit; or
\t\t\t\t(6) The individual has been determined to be an independent contractor by the federal Internal Revenue Service (an SS-8 determination).
\t5 Minimum Wage Law; Definitions. RSA 279:1, X is repealed and reenacted to read as follows:
\t\tX. ”Employee” means every individual, other than a person exempted from the definition of employee under RSA 281-A:2, VI(b)(2), (3), or (4), or RSA 281-A:2, VII(b), or a person providing services as part of a residential placement for individuals with developmental, acquired, or emotional disabilities, who may be permitted, required, or directed by a single employer, in consideration of direct or indirect gain or profit, to provide services, unless this presumption is rebutted to the satisfaction of the commissioner that the individual is an independent contractor, both under the individual’s contract of service and in fact, and the hiring unit proves that the individual meets all of the criteria in subparagraph (a) and 3 of the criteria in subparagraph (b).
\t\t\t(a) The following criteria shall be met:
\t\t\t\t(1) The individual has the essential right to control the detailed means and manner of the work except as to final results;
\t\t\t\t(2) The individual has the opportunity for profit and loss as a result of the services being performed;
\t\t\t\t(3) The individual performs services that the individual is customarily engaged in as an independently established trade, occupation, profession, or business. This subparagraph may be met even when the individual performs services for only one hiring unit, or for 2 or more related hiring units, during one temporary period not to exceed 6 months, if:
\t\t\t\t\t(A) The individual is not contractually or practically precluded by such hiring unit, or any related hiring units, from performing similar services for a different, unrelated hiring unit; and
\t\t\t\t\t(B) It is the individual’s choice not to make available or perform similar services for different, unrelated hiring units;
\t\t\t\t(4) The individual hires and pays the individual’s assistants, if any, and, to the extent such assistants are employees, supervises the details of the assistants’ work; and
\t\t\t\t(5) Payment to the individual is based on factors directly related to the agreed scope of work performed.
\t\t\t(b) At least 3 of the following criteria shall also be met:
\t\t\t\t(1) The individual has a substantive investment in the facilities, tools, instruments, materials, and knowledge used by the individual to complete the work;
\t\t\t\t(2) The individual is responsible for satisfactory completion of the work and may be held contractually responsible for failure to complete the work;
\t\t\t\t(3) The parties have a written contract that defines the relationship and gives each party contractual rights in the event the contract is terminated by the other prior to completion of the work;
\t\t\t\t(4) The work is outside the usual course of business of the hiring unit;
\t\t\t\t(5) The work is performed outside all of the places of business of the hiring unit; or
\t\t\t\t(6) The individual has been determined to be an independent contractor by the federal Internal Revenue Service (an SS-8 determination).
\t6 Workers’ Compensation; Definitions. RSA 281-A:2, VI(b)(1) is repealed and reenacted to read as follows:
\t\t\t\t(1) Subject to the preceding paragraph, "employee" means every individual, other than a direct seller or qualified real estate broker or agent or real estate appraiser, or person providing services as part of a residential placement for individuals with developmental, acquired, or emotional disabilities, who may be permitted, required, or directed by a single employer, in consideration of direct or indirect gain or profit, to provide services, unless this presumption is rebutted to the satisfaction of the commissioner that the individual is an independent contractor, both under the individual’s contract of service and in fact, and the hiring unit proves that the individual meets all of the criteria in subparagraph (A) and 3 of the criteria in subparagraph (B).
\t\t\t\t\t(A) The following criteria shall be met:
\t\t\t\t\t\t(i) The individual has the essential right to control the detailed means and manner of the work except as to final results;
\t\t\t\t\t\t(ii) The individual has the opportunity for profit and loss as a result of the services being performed;
\t\t\t\t\t\t(iii) The individual performs services that the individual is customarily engaged in as an independently established trade, occupation, profession, or business. This subparagraph may be met even when the individual performs services for only one hiring unit, or for 2 or more related hiring units, during one temporary period not to exceed 6 months, if:
\t\t\t\t\t\t(a) The individual is not contractually or practically precluded by such hiring unit, or any related hiring units, from performing similar services for a different, unrelated hiring unit; and
\t\t\t\t\t\t(b) It is the individual’s choice not to make available or perform similar services for different, unrelated hiring units;
\t\t\t\t\t\t(iv) The individual hires and pays the individual’s assistants, if any, and, to the extent such assistants are employees, supervises the details of the assistants’ work; and
\t\t\t\t\t\t(v) Payment to the individual is based on factors directly related to the agreed scope of work performed.
\t\t\t\t\t(B) At least 3 of the following criteria shall also be met:
\t\t\t\t\t\t(i) The individual has a substantive investment in the facilities, tools, instruments, materials, and knowledge used by the individual to complete the work;
\t\t\t\t\t\t(ii) The individual is responsible for satisfactory completion of the work and may be held contractually responsible for failure to complete the work;
\t\t\t\t\t\t(iii) The parties have a written contract that defines the relationship and gives each party contractual rights in the event the contract is terminated by the other prior to completion of the work;
\t\t\t\t\t\t(iv) The work is outside the usual course of business of the hiring unit;
\t\t\t\t\t\t(v) The work is performed outside all of the places of business of the hiring unit; or
\t\t\t\t\t\t(vi) The individual has been determined to be an independent contractor by the federal Internal Revenue Service (an SS-8 determination).
\t7 Workers’ Compensation; Definitions. Amend RSA 281-A:2, VI(c) to read as follows:
\t\t\t(c) A written agreement signed by the [employer] hiring unit and the [person] individual providing services, on or about the date such person was engaged, which describes how the services are to be performed [and affirms that such services are to be performed] in accordance with [each of] the criteria in [subparagraphs] subparagraph (b)(1)[(A)-(G)] is prima facie evidence that the criteria have been met. Nothing in this subparagraph shall require such an agreement to establish that the criteria have been met.
\t8 Unemployment Compensation; Definitions. RSA 282-A:9, III is repealed and reenacted to read as follows:
\t\tIII. Services performed by an individual for wages shall be deemed to be employment subject to this chapter unless and until it is shown to the satisfaction of the commissioner of the department of employment security that:
\t\t\t(a) The individual has the essential right, both under the individual’s contract of service and in fact, to control the detailed means and manner of the work except as to final results;
\t\t\t(b) The individual has the opportunity for profit and loss as a result of the services being
\tperformed; and
\t\t\t(c) The individual performs services that the individual is customarily engaged in as an independently established trade, occupation, profession, or business; this provision may be met even when the individual performs services for only one hiring unit, or for 2 or more related hiring units, during one temporary period not to exceed 6 months, if:
\t\t\t\t(1) The individual is not contractually or practically precluded by such hiring unit, or any related hiring units, from performing similar services for a different, unrelated hiring unit; and
\t\t\t\t(2) It is the individual’s choice not to make available or perform similar services for different, unrelated hiring units; and
\t\t\t(d) The individual hires and pays the individual’s assistants, if any, and, to the extent such assistants are employees, supervises the details of the assistants’ work; and
\t\t\t(e) Payment to the individual is based on factors directly related to the agreed scope of work performed; and
\t\t\t(f) That at least 3 of the following criteria are met:
\t\t\t\t(1) The individual has a substantive investment in the facilities, tools, instruments, materials, and knowledge used by the individual to complete the work;
\t\t\t\t(2) The individual is responsible for satisfactory completion of the work and may be held contractually responsible for failure to complete the work;
\t\t\t\t(3) The parties have a written contract that defines the relationship and gives each party contractual rights in the event the contract is terminated by the other prior to completion of the work;
\t\t\t\t(4) The work is outside the usual course of business of the hiring unit;
\t\t\t\t(5) The work is performed outside all of the places of business of the hiring unit; or
\t\t\t\t(6) The individual has been determined to be an independent contractor by the Federal Internal Revenue Service (an SS-8 determination).
\t9 Effective Date. This act shall take effect January 1, 2017.