An Act To Improve the Workers' Compensation System
Sec. 1. 39-A MRSA §105, as amended by PL 2015, c. 297, §2, is further amended to read:
§ 105. Predetermination of independent contractor and construction subcontractor status
Sec. 2. 39-A MRSA §105-A, sub-§3, as enacted by PL 2009, c. 452, §5, is amended to read:
Sec. 3. 39-A MRSA §154, sub-§6, ¶A, as amended by PL 2009, c. 109, §1 and affected by §2, is further amended to read:
Sec. 4. 39-A MRSA §322, sub-§1, as amended by PL 2015, c. 297, §17, is further amended to read:
Sec. 5. 39-A MRSA §401, sub-§1, as amended by PL 2013, c. 87, §1, is further amended to read:
A private employer who has not secured the payment of compensation under this section and sections 402 to 407 by purchasing a workers' compensation policy or self-insuring as set forth in section 403 is not entitled, in a civil action brought by an employee or the employee's representative for personal injuries or death arising out of and in the course of employment, to the defense set forth in section 103. The employee of any such employer may, instead of bringing a civil action, claim compensation from the employer under this Act.
The following employers are not liable under this section for securing the payment of compensation in conformity with this section and sections 402 to 407 by purchasing a workers' compensation policy or self-insuring as set forth in section 403 with respect to the employees listed, nor deprived of the defenses listed in section 103:
(1) As used in this subsection, "casual" means occasional or incidental. "Seasonal" refers to laborers engaged in agricultural or aquacultural employment beginning at or after the commencement of the planting or seeding season and ending at or before the completion of the harvest season; and
(1) The employer has 6 or fewer concurrently employed agricultural or aquacultural laborers; or
(2) The employer has more than 6 agricultural or aquacultural laborers but the total number of hours worked by all such laborers in a week does not exceed 240 and has not exceeded 240 at any time during the 52 weeks immediately preceding an injury.
For purposes of this paragraph, seasonal and casual workers, immediate family members of unincorporated employers and immediate family members of bona fide owners of at least 20% of the voting stock of an incorporated employer are not considered agricultural or aquacultural laborers. "Immediate family members" means parents, spouses, brothers, sisters and children and the spouses of parents, brothers, sisters and children.
The burden of proof to establish an exempt status under this subsection is on the employer claiming the exemption.
Sec. 6. 39-A MRSA §401, sub-§2, as enacted by PL 1991, c. 885, Pt. A, §8 and affected by §§9 to 11, is amended to read:
Sec. 7. 39-A MRSA §401, sub-§3, as amended by PL 1999, c. 364, §5, is further amended to read:
Sec. 8. 39-A MRSA §401, sub-§4, as amended by PL 2011, c. 643, §12 and affected by §14, is further amended to read:
A landowner is not liable for compensation if at the time the landowner enters into the contract with the contractor, the landowner applies for and receives a predetermination of the independent status of the contractor as set forth in section 105 , subsection 1-B, the landowner requests and receives a certificate of independent status, issued by the board Bureau of Insurance on an annual basis to a contractor, certifying that the contractor harvests forest products in a manner that would not make the contractor an employee of the landowner or the landowner requests and receives a certificate of insurance, issued by the contractor's insurance carrier, certifying that the contractor has obtained the required coverage and indicating the effective dates of the policy, and if the landowner requests and receives at least annually similar certificates indicating continuing coverage during the performance of the work. A landowner who receives a predetermination of the contractor's status as independent contractor or a certificate of independent status is only relieved of liability under this paragraph if the contract for wood harvesting expressly states that the independent contractor will not hire any employees to assist in the wood harvesting without first providing the required certificate of insurance to the landowner.
Notwithstanding section 105, subsection 1, paragraph A, a predetermination under section 105 related only to a person engaged in harvesting forest products is a conclusive presumption that the determination is correct and section 105, subsection 2 does not apply to that determination. Each party involved in or affected by the predetermination must be provided information on the workers' compensation laws and the effect of independent contractor status in relation to those laws. A predetermination under section 105 related to a person engaged in harvesting forest products is effective for one calendar year or the duration of the contract, whichever is shorter.
A landowner required to pay compensation under this section is entitled to be indemnified by the contractor and may recover the amount paid in an action against that contractor. A landowner may demand that the contractor enter into a written agreement to reimburse the landowner for any loss incurred under this section due to a claim filed for compensation and other benefits. The employee is not entitled to recover at common law against the landowner for any damages arising from such injury if the employee takes compensation from that landowner.
Landowners willfully acting to circumvent the provisions of this section by using coercion, intimidation, deceit or other means to encourage persons who would otherwise be considered employees within the meaning of this Act to pose as contractors for the purpose of evading this section are liable subject to the provisions of section 324, subsection 3. Nothing in this section may be construed to prohibit an employee from becoming a contractor subject to the provisions of section 102, subsection 13-A.
Sec. 9. 39-A MRSA §407, as enacted by PL 1991, c. 885, Pt. A, §8 and affected by §§9 to 11, is amended to read:
§ 407. Preservation of existing employer status
An employer with a currently approved workers' compensation policy or a currently accepted self-insurance workers' compensation policy under sections 401 to 407 is deemed to be in compliance with this Act until the expiration or cancellation date of the current assent based on the policy or plan that has misclassified one or more employees has intentionally failed to secure payment of compensation within the meaning of section 324, subsection 3 and is subject to the penalties prescribed by that section. Notwithstanding this section, all workers' compensation policies and self-insured workers' compensation policies must include a provision requiring payment of benefits under this Act to an employee even if the employee was misclassified on the date of injury or death.
This bill makes the following changes to the Maine Workers' Compensation Act of 1992.
1. It transfers the predetermination of independent contractor status process to the Department of Professional and Financial Regulation, Bureau of Insurance.
2. It establishes that rebuttable presumptions granted as a result of a request for a predetermination are admissible only in proceedings arising under the Maine Revised Statutes, Title 24-A. Conclusive predeterminations received by landowners continue to be admissible in proceedings under the Maine Workers' Compensation Act of 1992.
3. It modifies the law after the Law Court's decision in Workers' Compensation Board Abuse Investigation Unit v. Nate Holyoke Builders, Inc., et al., 2015 ME 99 and ensures employers that misclassify employees as independent contractors are subject to penalties under the Maine Workers' Compensation Act of 1992.
4. It increases the Workers' Compensation Board's assessment cap starting in fiscal year 2016-17.
5. It establishes that appeals to the Law Court from the Workers' Compensation Board are from decisions of the Workers' Compensation Board's Appellate Division and not an individual administrative law judge.