§ 3-904. Knowing failure to properly classify employee

   (a) Prohibition. -- An employer may not knowingly fail to properly classify an individual who performs work for remuneration paid by the employer.

(b) What constitutes knowing failure to classify. -- An employer has knowingly failed to properly classify an individual when:

   (1) an employer-employee relationship exists as determined under § 3-903(c) of this subtitle; and

   (2) the employer has knowingly failed to properly classify the individual as an employee.

(c) Evidence. -- The Commissioner shall consider, as strong evidence that the employer did not knowingly fail to properly classify an individual, whether:

   (1) before a complaint was filed against the employer or the Commissioner began an investigation of the employer, the employer:

      (i) sought and obtained evidence that the individual:

         1. is an exempt person; or

         2. as an independent contractor:

            A. withholds, reports, and remits payroll taxes on behalf of all individuals working for the independent contractor;

            B. pays unemployment insurance taxes for all individuals working for the independent contractor; and

            C. maintains workers' compensation insurance; and

      (ii) provided to the exempt person or independent contractor a written notice as required by § 3-914 of this subtitle; or

   (2) the employer:

      (i) 1. classifies all workers who perform the same or substantially the same tasks for the employer as independent contractors; and

         2. reports the income of the workers to the Internal Revenue Service as required by federal law; and

      (ii) has received a determination from the Internal Revenue Service that the individual or a worker who performs the same or substantially the same task as the individual is an independent contractor.

(d) Regulations. -- The Commissioner shall adopt regulations to provide guidance as to what constitutes the evidence relevant to the determination of whether an employer knowingly failed to properly classify an employee.

HISTORY: 2009, ch. 188.