Bill Text: IN HB1120 | 2010 | Regular Session | Amended
Bill Title: Employee defined classification.
Spectrum: Partisan Bill (Democrat 3-0)
Status: (Engrossed - Dead) 2010-02-11 - Senator Deig added as cosponsor [HB1120 Detail]
Download: Indiana-2010-HB1120-Amended.html
Citations Affected: IC 6-3; IC 6-8.1; IC 22-1; IC 22-2; IC 22-3;
IC 22-4.1; IC 34-11; IC 36-1.
Synopsis: Employee defined classification. Provides that an individual
performing services for a contractor or subcontractor on a construction
project is considered to be an employee of the contractor or
subcontractor, with certain exceptions. Provides for investigations of
the employment relationship between an individual and a contractor or
subcontractor by the department of labor, for certain procedures to be
followed in investigations, and for various civil penalties to be assessed
by the department of labor for the failure to properly classify
individuals as employees. Provides that certain information pertaining
to employee classification shared among certain state agencies is
confidential. Prohibits the awarding of contracts for certain public work
projects to a contractor or subcontractor for four years after the
contractor or subcontractor is found to have committed certain
recurring improper classifications.
Effective: July 1, 2010.
January 5, 2010, read first time and referred to Committee on Labor and Employment.
January 7, 2010, amended, reported _ Do Pass.
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A BILL FOR AN ACT to amend the Indiana Code concerning labor
and safety.
(b) As used in this section, "person" means an individual, a proprietorship, a partnership, a joint venture, a firm, an association, a corporation, or other legal entity.
(c) An independent contractor who does not make an election under:
(1) IC 22-3-6-1(b)(4) or IC 22-3-6-1(b)(5) is not subject to the compensation provisions of IC 22-3-2 through IC 22-3-6; or
(2) IC 22-3-7-9(b)(2) or IC 22-3-7-9(b)(3) is not subject to the compensation provisions of IC 22-3-7;
and must file a statement with the department with supporting documentation of independent contractor status and obtain a certificate of exemption under this section.
(d) An independent contractor shall file with the department, in the form prescribed by the department, a statement providing the following
information:
(1) The independent contractor's name, trade name, address, and
telephone number.
(2) The independent contractor's federal identification number or
Social Security number.
(3) The name and:
(A) Social Security number;
(B) federal employer identification number (FEIN); or
(C) taxpayer identification number (TIN);
of each person or entity with whom the independent contractor
has contracted.
(e) Along with the statement required in subsection (d), an
independent contractor shall file annually with the department
documentation in support of independent contractor status before being
granted a certificate of exemption. The independent contractor must
obtain clearance from the department of state revenue before issuance
of the certificate.
(f) An independent contractor shall pay a filing fee of five
twenty-five dollars ($5) ($25) with the statement required in
subsection (d). The fees collected under this subsection shall be
deposited into a special account in the state general fund known as the
independent contractor information account. Money in the independent
contractor information account is annually appropriated to the
department for its use in carrying out the purposes of this section.
(g) The department shall keep each statement and supporting
documentation received under this section on file and on request may
verify that a certificate of exemption is on file.
(h) The certificate of exemption required by this section must be on
a form prescribed and provided by the department. A certificate issued
under this section is valid for one (1) year. The department shall
maintain the original certificate on file.
(i) A certificate of exemption must certify the following
information:
(1) That the independent contractor has worker's compensation
coverage for the independent contractor's employees in
accordance with IC 22-3-2 through IC 22-3-7.
(2) That the independent contractor desires to be exempt from
being able to recover under the worker's compensation policy or
self-insurance of a person for whom the independent contractor
will perform work only as an independent contractor.
(j) The department shall provide the certificate of exemption to the
person requesting it not less than seven (7) business days after
verifying the accuracy of the supporting documentation. To be given
effect, a certificate of exemption must be filed with the worker's
compensation board of Indiana in accordance with IC 22-3-2-14.5(f)
and IC 22-3-7-34.5(g).
(k) Not more than thirty (30) days after the department receives an
independent contractor's statement and supporting documentation and
issues a certificate of exemption, the department shall provide the
independent contractor with an explanation of the department's tax
treatment of independent contractors and the duty of the independent
contractor to remit any taxes owed.
(l) The information received from an independent contractor's
statement and supporting documentation is to be treated as confidential
by the department and is to be used solely for the purposes of this
section.
(m) A contractor who knowingly or intentionally causes or assists
employees, including temporary employees, to file a false statement
and supporting documentation of independent contractor status
commits a Class D felony.
(n) If the department determines during an investigation that a
contractor or subcontractor improperly has classified an employee
as an independent contractor on a construction project, the
contractor or subcontractor may conform to the departmental
decision by properly classifying the employee found to be
misclassified as an independent contractor within seven (7)
business days after notification of the determination by the
department, making all necessary payments on behalf of the
employee, and no fee or penalty is due. In addition, the department
shall revoke the certificate of exemption provided under subsection
(j) to the employee who has not been properly classified. The filing
fee paid under subsection (f) shall not be returned to the individual
who had claimed to be an independent contractor.
(o) A contractor or subcontractor who continues to improperly
classify an employee as an independent contractor on a
construction project more than seven (7) business days after
notification by the department of the determination of the
misclassification under subsection (n) is subject to a civil penalty
of five hundred dollars ($500) per employee, to be paid to the
department. The penalties collected under this subsection shall be
deposited into the special account in the state general fund
established under subsection (f) and known as the independent
contractor information account. IC 6-8.1-3-12 applies to the
investigation and IC 6-8.1-5-1 applies to the assessment of tax due
concerning the determination of the failure to properly classify an
employee under this section.
(p) If a contractor or a subcontractor claims to have conformed
to the department's decision under subsection (n), and upon
further investigation the contractor or subcontractor is found to
have continued the improper classification or has not remedied
fully the violation, the contractor or subcontractor is subject
immediately to double the civil penalty under subsection (o) per
employee who has been improperly classified.
(q) An independent contractor who fails to file a statement as
required by subsection (d) shall be assessed a civil penalty of five
hundred dollars ($500) by the department. A civil penalty assessed
and paid under this subsection shall be deposited into the special
account in the state general fund established under subsection (f)
and known as the independent contractor information account.
(b) The commissioner shall prescribe the appropriate form and manner in which collection information is to be submitted to the department.
(c) The debt must be delinquent and not subject to litigation, claim, appeal, or review under the appropriate remedies of a state agency.
(d) The department has the authority to collect for the state or claimant agency (as defined in IC 6-8.1-9.5-1) delinquent accounts, charges, fees, loans, taxes, or other indebtedness due the state or claimant agency that has a formal agreement with the department for central debt collection.
(e) The formal agreement must provide that the information provided to the department be sufficient to establish the obligation in court and to render the agreement as a legal judgment on behalf of the state. After transferring a file for collection to the department for collection, the claimant agency shall terminate all collection procedures and be available to provide assistance to the department. Upon receipt of a file for collection, the department shall comply with all applicable
state and federal laws governing collection of the debt.
(f) The department may use a claimant agency's statutory authority
to collect the claimant agency's delinquent accounts, charges, fees,
loans, taxes, or other indebtedness owed to the claimant agency.
(g) The department's right to credit against taxes due may not be
impaired by any right granted the department or other state agency
under this section.
(h) The department of state revenue may charge the claimant agency
a fee not to exceed fifteen percent (15%) of any funds the department
collects for a claimant agency. Notwithstanding any law concerning
delinquent accounts, charges, fees, loans, taxes, or other indebtedness,
the fifteen percent (15%) fee shall be added to the amount due to the
state or claimant agency when the collection is made.
(i) Fees collected under subsection (h) shall be retained by the
department after the debt is collected for the claimant agency and are
appropriated to the department for use by the department in
administering this section.
(j) The department shall transfer any funds collected from a debtor
to the claimant agency within thirty (30) days after the end of the
month in which the funds were collected.
(k) When a claimant agency requests collection by the department,
the claimant agency shall provide the department with:
(1) the full name;
(2) the Social Security number or federal identification number,
or both;
(3) the last known mailing address; and
(4) additional information that the department may request;
concerning the debtor.
(l) The department shall establish a minimum amount that the
department will attempt to collect for the claimant agency.
(m) The commissioner shall report, not later than March 1 for the
previous calendar year, to the governor, the budget director, and the
legislative council concerning the implementation of the centralized
debt collection program, the number of debts, the dollar amounts of
debts collected, and an estimate of the future costs and benefits that
may be associated with the collection program. A report to the
legislative council under this subsection must be in an electronic
format under IC 5-14-6.
(n) The department may not assess a fee to a state agency or a
custodial parent for seeking a setoff to a state or federal income tax
refund for past due child support.
FOLLOWS [EFFECTIVE JULY 1, 2010]: Sec. 16. The commissioner
of labor and his an authorized representative of the commissioner of
labor shall have the power and the authority to enter any place of
employment for the purpose of collecting facts and statistics relating to
the employment of workers and of making inspections for the proper
enforcement of all of the labor laws of this state, including IC 5-16-7
and IC 22-2-15. No employer or owner shall refuse to admit the
commissioner of labor or his authorized representatives of the
commissioner of labor to his the employer's or owner's place of
employment.
Chapter 15. Employee Defined Classification Act
Sec. 1. This chapter applies after December 31, 2010.
Sec. 2. This chapter is intended to address the proper classification of employees and independent contractors.
Sec. 3. As used in this chapter, "agent of the contractor" means:
(1) an individual having management authority or enforcement powers with respect to a practice or policy of the contractor regarding the classification of an employee of the contractor;
(2) a corporate officer of the contractor; or
(3) a member of the board of directors of the contractor.
Sec. 4. (a) As used in this chapter, "board" refers to the worker's compensation board of Indiana created by IC 22-3-1-1(a).
(b) The term includes the board, the secretary of the board, employees of the board, and agents authorized by the board to act on behalf of the board.
Sec. 5. (a) As used in this chapter, "construction" means any constructing, altering, reconstructing, repairing, rehabilitating, refinishing, refurbishing, remodeling, remediating, renovating, custom fabricating, maintaining, landscaping, improving, wrecking, painting, decorating, demolishing, and adding to or subtracting from any building, structure, airport facility, highway, roadway, street, bridge, alley, sewer, drain, ditch, sewage disposal plant, waterworks, parking facility, railroad, excavation, or other project, development, real property or improvement, or doing any part of these actions.
(b) For purposes of subsection (a), it is immaterial whether or not the performance of the work described involves the addition of any material or article of merchandise to, or fabrication into, a
structure, project, development, real property, or improvement
described in this section.
(c) The term defined in subsection (a) includes moving
construction related materials to or from the job site.
Sec. 6. (a) As used in this chapter, "contractor" means any sole
proprietor, partnership, firm, corporation, limited liability
company, association, or other legal entity that engages in
construction authorized by law to do business within Indiana.
(b) The term includes a general contractor, a subcontractor, and
a lower tiered contractor.
(c) The term does not include the state, the federal government,
or a political subdivision.
Sec. 7. (a) As used in this chapter, "department" refers to the
department of labor created by IC 22-1-1-1.
(b) The term includes the commissioner, employees of the
department of labor, and agents authorized by the commissioner
to act on behalf of the department of labor.
Sec. 8. (a) As used in this chapter, "department of revenue"
refers to the department of state revenue established by
IC 6-8.1-2-1.
(b) The term includes the commissioner, employees of the
department of revenue, and agents authorized by the commissioner
to act on behalf of the department of revenue.
Sec. 9. (a) As used in this chapter, "department of workforce
development" refers to the department of workforce development
established by IC 22-4.1-2-1.
(b) The term includes the commissioner, employees of the
department of workforce development, and agents authorized by
the commissioner to act on behalf of the department of workforce
development.
Sec. 10. (a) As used in this chapter, "interested party" means a
person with an interest in compliance with this chapter, including
the state or a political subdivision.
(b) This section does not require that a person be aggrieved in
order to be considered an interested party.
Sec. 11. As used in this chapter, "performing services" means
performing construction services.
Sec. 12. As used in this chapter, "political subdivision" has the
meaning set forth in IC 36-1-2-13.
Sec. 13. As used in this chapter, "subcontractor" has the
meaning set forth in IC 36-1-12-1.2(3).
Sec. 14. An individual performing services for a contractor is
considered to be an employee of the contractor unless:
(1) the:
(A) individual has been and will continue to be free from
control or direction over the performance of the service for
the contractor, both under the individual's contract of
service and in fact; and
(B) individual is engaged in an independently established
trade, occupation, profession, or business;
(2) the individual is determined to be a legitimate sole
proprietor or partnership because:
(A) the sole proprietor or partnership is performing the
service without substantial direction and control as to the
means and manner of providing the services, subject only
to the right of the contractor, for whom the service is
provided, to specify the desired result;
(B) the sole proprietor or partnership has a substantial
investment of capital in the sole proprietorship;
(C) the sole proprietor or partnership owns the capital
goods, gains the profits, and bears the losses of the sole
proprietorship or partnership;
(D) the sole proprietor or partnership makes its services
available to the general public or the business community
on a continuing basis;
(E) the sole proprietor or partnership includes services
rendered on a federal income tax schedule as an
independent business or profession;
(F) the sole proprietor or partnership performs services
for the contractor under the sole proprietor's or
partnership's name and the contractor pays the sole
proprietor or partnership a flat fee or other agreed
amount of compensation that is not based on an established
rate for any time period of work;
(G) the sole proprietor or partnership obtains and pays for
the license or permit in the sole proprietor's or
partnership's name when the services being provided
require a license or permit;
(H) the sole proprietor or partnership furnishes the tools
and equipment necessary to provide the service;
(I) if necessary, the sole proprietor or partnership hires its
own employees, pays the employees without
reimbursement from the contractor, and reports the
employees' income to the Internal Revenue Service;
(J) the contractor does not:
(i) represent the sole proprietor or partnership as an employee of the contractor to its customers; or
(ii) reimburse the sole proprietor or partnership for its business expenses;
(K) the sole proprietor or partnership has the right to choose to perform similar services for others; and
(L) the sole proprietorship or partnership has a written agreement with the contractor describing the intended business relationship; or
(3) the individual is an owner-operator that provides a motor vehicle and the services of a driver under a written contract that is subject to IC 8-2.1-24-23, 45 IAC 16-1-13, or 49 CFR 376, to a motor carrier.
Sec. 15. (a) It is a violation of this chapter for a contractor, an agent of a contractor, or a subcontractor to classify an individual as an independent contractor unless the relationship between the individual and the contractor or subcontractor is excluded under section 14 of this chapter.
(b) A contractor is jointly liable under this chapter for the failure of a subcontractor or a lower tiered subcontractor to properly classify persons performing services as employees.
Sec. 16. (a) A contractor or subcontractor shall maintain records for a period as required in IC 6-3-6-10 and IC 6-8.1-5-4 for an individual performing services for the contractor or subcontractor, regardless whether the individual is classified as:
(1) an employee;
(2) an independent contractor;
(3) a sole proprietor; or
(4) a partnership.
(b) Records to be maintained by the contractor or subcontractor must include all documents related to, or tending to establish the nature of, the relationship between the contractor or subcontractor and an individual performing services for the contractor or subcontractor. Records that must be maintained under this section for an individual performing services for the contractor or subcontractor include, but are not limited to:
(1) the:
(A) name;
(B) address;
(C) phone number; and
(D) Social Security number, individual taxpayer
identification number, or federal tax identification
number;
(2) the type of work performed and the total number of days
and hours worked;
(3) the method, frequency, and basis on which wages were
paid or payments were made;
(4) all invoices, billing statements, or other payment records,
including the dates of payments, and any miscellaneous
income paid or deductions made;
(5) copies of all contracts with the individual, agreements with
the individual, applications for employment by the individual
with the contractor or subcontractor, and policy or
employment manuals of the employer for the period that the
individual performed services for the contractor or
subcontractor; and
(6) any federal and state tax documents or other information
the department considers relevant or necessary.
Sec. 17. (a) An interested party may file a complaint with the
department against a contractor or a subcontractor if the
interested party has a reasonable belief that the contractor or
subcontractor is in violation of this chapter. The department may
not investigate a complaint for a violation alleged to have occurred
before January 1, 2011.
(b) Upon receiving a complaint under subsection (a), the
department immediately shall commence an investigation to
ascertain the facts relating to the violation alleged in the complaint
and determine whether a violation under this chapter has
occurred. The investigation may be made by written or oral
inquiry, field visit, conference, or any method or combination of
methods the department considers suitable. The department:
(1) shall conduct investigations, including random inspections,
in connection with the administration and enforcement of this
chapter;
(2) shall enforce this chapter; and
(3) may hire investigators and other personnel necessary to
carry out the purpose of this chapter.
(c) The department has authority to visit and inspect, at all
reasonable times, a worksite subject to the provisions of this
chapter and has authority to inspect, at all reasonable times,
documents related to the determination of whether an individual
is an independent contractor under section 14 of this chapter.
(d) The department may:
(1) compel, by subpoena, the attendance and testimony of
witnesses and the production of books, payrolls, records,
papers, and other evidence in an investigation; and
(2) administer oaths to witnesses.
Sec. 18. (a) The department, the department of workforce
development, the department of revenue, and the board shall
cooperate under this chapter by sharing information concerning
suspected failure to properly classify an independent contractor as
an employee by a contractor, an agent of a contractor, or a
subcontractor.
(b) Before January 1, 2011, the department, the department of
workforce development, the department of revenue, and the board
shall develop a joint computer system in order to share
information. For purposes of IC 5-14-3-4, information exchanged
under this section is confidential.
Sec. 19. (a) Whenever the department determines, after
investigation, that a violation of this chapter has occurred, the
department shall issue and cause to be served on the contractor or
the subcontractor, by posting at the site in a location visible to the
workers, if construction is still occurring, an order to cease and
desist from further violation of this chapter. If construction has
ceased, the notice shall be sent by first class mail to the business
address of the contractor as shown in the records of the secretary
of state. If a subcontractor has committed the violation, the
department shall notify the contractor either at the job site or by
first class mail sent to the business address of the contractor as
shown in the records of the secretary of state, and to the
subcontractor, either at the job site or by first class mail sent to the
business address of the subcontractor as shown in the records of
the secretary of state. An order issued under this section is a
matter of public record.
(b) Upon determining that a contractor, an agent of a
contractor, or a subcontractor has classified an employee as an
independent contractor in violation of this chapter, the department
shall notify:
(1) the department of workforce development, which shall
investigate the contractor's compliance with laws under
IC 22-4 and IC 22-4.1;
(2) the department of revenue, which shall investigate the
contractor's compliance with laws under IC 6; and
(3) the board, which shall investigate the contractor's
compliance with laws under IC 22-3.
The department of workforce development, the department of revenue, and the board have the option to join in the investigation with the department or to commence a separate investigation.
Sec. 20. (a) Seven (7) business days after the department serves a cease and desist order upon a violator under section 19 of this chapter, if services are continuing to be performed, the investigating department shall return to the job site and continue investigation of the classification of employees. If the department concludes that the improper classification of employees is continuing, the department shall impose a civil penalty of five hundred dollars ($500) per improperly classified employee against the contractor, and at the discretion of the department also on the contractor if a subcontractor has committed the violation. The civil penalty shall be deposited in the employee classification fund established by section 24 of this chapter. A civil penalty imposed under this section is a matter of public record.
(b) Fifteen (15) days after the investigating department has made an investigation at a job site under subsection (a), if services are continuing to be performed, the department shall return to the job site and continue the investigation of the proper classification of employees. If the department concludes that improper classification of employees is continuing to occur, the department shall impose a civil penalty of:
(1) one thousand dollars ($1,000) per improperly classified employee against the contractor or against both the contractor and the subcontractor, if the subcontractor has committed the violation, in cases in which the contractor or subcontractor has employed five (5) or fewer improperly classified employees;
(2) two thousand five hundred dollars ($2,500) per improperly classified employee against the contractor or against both the contractor and the subcontractor, if the subcontractor has committed the violation, in cases in which the contractor or subcontractor has employed six (6) to ten (10) improperly classified employees; and
(3) five thousand dollars ($5,000) per improperly classified employee against the contractor or against both the subcontractor and contractor, if the subcontractor has committed the violation, in cases in which the contractor or subcontractor has employed more than ten (10) improperly classified employees.
The civil penalty shall be deposited in the employee classification
fund established by section 24 of this chapter. A civil penalty
imposed under this section is a matter of public record.
Sec. 21. At the time of the imposition of the civil penalty under
section 20(a) and 20(b) of this chapter, the department shall inform
the contractor by written notice, sent by first class mail to the
business address of the contractor as shown in the records of the
secretary of state, that a further investigation by the department
will be made thirty (30) business days after the initiation of the
investigation. The notice also must inform the contractor that if
further investigation reveals the continuing failure to properly
classify employees, the department will take the action set forth in
section 26(b) of this chapter, which will deny the contractor a
contract for a public work project (as defined in IC 36-1-12-2), a
state public works project under IC 4-13.6, or an Indiana
department of transportation public works project under IC 8-23
for four (4) years after the posting of the name of the contractor on
a list kept by the department and posted on the department's
Internet web site.
Sec. 22. (a) A contractor, an agent of a contractor, or a
subcontractor that receives:
(1) a cease and desist order;
(2) a civil penalty assessment; or
(3) both an order under subdivision (1) and a civil penalty
under subdivision (2);
from the department may seek a hearing on the determination by
filing a written petition for review with the department within ten
(10) business days after receipt of the determination and in
accordance with IC 4-21.5-3-2. The petition for review must
contain a statement of the basis for contesting the determination of
the department. The department shall mail a copy of the petition
for review to the complainant and to any interested party
designated on the complaint. The contractor or subcontractor shall
post a copy of the petition for review contemporaneously with the
filing of the petition at or near the place where the alleged violation
occurred or, if the contractor or subcontractor is no longer
performing services at the place where the alleged violation
occurred, at the contractor's or subcontractor's principal place of
business in a conspicuous place where labor notices regularly are
posted. Further, the contractor or subcontractor, when filing the
petition, shall post a bond in an amount sufficient to pay wages,
salary, employment benefits, or other compensation lost or denied
to the individual as determined by the department and civil
penalties assessed by the department. If the contractor, agent of the
contractor, or subcontractor does not file a petition for review and
post a bond within the ten (10) business day period, the
department's determination is final.
(b) If the contractor, agent of the contractor, or subcontractor
files a petition for review of an action under section 26(b) of this
chapter within ten (10) business days after notification of the
proposed action by the department, the commissioner shall set a
hearing on the proposed action. The hearing must take place not
more than forty-five (45) calendar days after the receipt of the
request for the hearing by the department. The hearing must be
held in accordance with IC 4-21.5.
Sec. 23. If a contractor or subcontractor does not:
(1) file a written petition for review within ten (10) business
days after receipt of the determination in accordance with
IC 4-21.5-3-2 as required by section 22(a) of this chapter; or
(2) prevail in an appeal under IC 4-21.5-3-2;
the department may additionally order the contractor or
subcontractor to cease work on all projects where the contractor
or subcontractor has been found to have misclassified employees
under this chapter. This order must remain in effect until the
department determines that the contractor or subcontractor has
remedied fully the misclassification, including making all
employees whole for the misclassification.
Sec. 24. (a) The employee classification fund is established to
provide funds for:
(1) administering this chapter;
(2) investigating contractors, agents of contractors, and
subcontractors;
(3) determining whether there is proof to substantiate
allegations of failure to properly classify employees; and
(4) meeting other expenses incurred in carrying out the duties
of the department under this chapter.
The fund consists of civil penalties collected by the department
under this chapter. The fund shall be administered by the
department.
(b) The expenses of administering the fund shall be paid from
money in the fund.
(c) The treasurer of state shall invest the money in the fund not
currently needed to meet the obligations of the fund in the same
manner as other public money may be invested. The interest that
accrues from these investments shall be deposited in the fund.
(d) Money in the fund at the end of a state fiscal year does not revert to the state general fund.
Sec. 25. IC 22-1-1-18 applies to a violation of this chapter. When it appears to the department that a contractor, an agent of a contractor, or a subcontractor has violated a valid order of the department issued under this chapter, the department may:
(1) commence an action through the attorney general; and
(2) seek an order from the superior or circuit court in the county in which the contractor or subcontractor does business;
mandating the contractor or the subcontractor to obey the order of the department. The failure of the contractor or the subcontractor to obey a court order obtained under this section is contempt of court.
Sec. 26. (a) The department shall post a summary of the requirements of this chapter on the Internet web site of the department.
(b) After the imposition of a civil penalty under section 20(b) of this chapter, thirty (30) business days after the initiation of the investigation, the department shall place the contractor's or subcontractor's name on a list maintained on the Internet web site of the department. A contract for a public work may not be awarded by a department of the state listed in section 21 of this chapter or a political subdivision to:
(1) a contractor or subcontractor whose name appears on the list; or
(2) a firm, a corporation, a partnership, or an association in which the contractor or subcontractor has an interest;
until four (4) years after the posting of the contractor's or subcontractor's name on the list. If a contractor, agent of the contractor, or subcontractor files a timely petition for review under section 22(b) of this chapter, the contractor's or subcontractor's name shall not be added to the list until the department's determination that the contractor or subcontractor has violated this chapter is final.
Sec. 27. (a) It is a violation of this chapter for a contractor, an agent of a contractor, or a subcontractor to retaliate through discharge or in any other manner against a person for exercising a right granted under this chapter.
(b) It is a violation of this chapter for a contractor, an agent of a contractor, or a subcontractor to retaliate against a person for:
(1) making a complaint to a contractor or an agent of a
contractor, to a coworker, to a community organization, to a
state or federal agency, or within a public hearing that rights
guaranteed under this chapter have been violated;
(2) causing a proceeding under or related to this chapter to be
instituted; or
(3) testifying or preparing to testify in an investigation or
proceeding under this chapter.
(c) Retaliation through discharge or in any other manner
subjects a contractor, an agent of a contractor, or a subcontractor
to a private civil action brought by the aggrieved person.
(d) In a civil action for unlawful retaliation, the court may
award:
(1) all legal or equitable relief, or both, as appropriate; and
(2) attorney's fees and costs.
(e) The right of an aggrieved person to bring a civil action under
this section terminates three (3) years after the final date of
performing services for the contractor or subcontractor by the
affected employee. However, the period of limitation established by
this subsection is tolled if the contractor, an agent of the
contractor, or a subcontractor has deterred a person's exercise of
rights under this chapter.
Sec. 28. A person may not waive any provision of this chapter.
Sec. 29. All statutory provisions and penalties existing before
July 1, 2010, including fines, that apply to the improper
classification of employees as independent contractors remain in
effect after June 30, 2010.
Sec. 30. A finding made under this chapter:
(1) is for the purpose of enforcing this chapter; and
(2) is not admissible or binding against a party in a
proceeding other than a proceeding under this chapter.
(b) The worker's compensation board may investigate an
allegation of improper classification of an employee as an
independent contractor in violation of IC 22-2-15.
(c) If the worker's compensation board, during its investigation,
determines that a contractor or subcontractor has failed to
properly classify an independent contractor as an employee on a
construction project and the contractor or subcontractor fully
conforms to the decision of the worker's compensation board,
either by:
(1) properly classifying all employees found to be improperly
classified as an independent contractor within seven (7)
business days after notification by the worker's compensation
board of the determination; or
(2) ceasing all work on the construction project within seven
(7) business days after notification;
the contractor or subcontractor shall be found to be in
conformance with the decision of the the worker's compensation
board, and no fee or penalty is due.
(d) If the worker's compensation board discovers, more than
seven (7) business days after notification by the worker's
compensation board of the determination under subsection (c), that
the contractor or subcontractor continues to improperly classify an
employee as an independent contractor, the contractor or
subcontractor is subject to a civil penalty of five hundred dollars
($500) per improperly classified employee, to be assessed and
collected by the board.
(e) Civil penalties assessed and collected under this section shall
be deposited in the worker's compensation supplemental
administrative fund established by section 6 of this chapter.
(b) The money in the fund is not to be used to replace funds otherwise appropriated to the board. Money in the fund at the end of the state fiscal year does not revert to the state general fund.
(b) If the department, during its investigation, determines that a contractor or subcontractor has improperly classified an employee as an independent contractor on a construction project and the contractor or subcontractor fully conforms to the decision of the department, either by:
(1) properly classifying all employees found to be improperly classified as an independent contractor within seven (7) business days after notification by the department; or
(2) ceasing all work on the construction project within seven (7) business days after the notification;
the contractor or subcontractor shall be found to be in conformance with the decision of the department, and no fee or penalty is due.
(c) If the department discovers, more than seven (7) business days after notification by the department of the determination under subsection (b) that the contractor or subcontractor continues to improperly classify an employee as an independent contractor, the contractor or subcontractor is subject to a civil penalty of five hundred dollars ($500) per improperly classified employee, to be assessed and collected by the board.
(d) Civil penalties assessed and collected under this section shall be deposited in the fund.
(b) The definitions in IC 22-2-15 apply throughout this section.
(c) A civil action brought by an aggrieved person under IC 22-2-15 must be commenced not later than three (3) years after the final date of performing services for the contractor, as provided in IC 22-2-15-27(e).
(1) political subdivisions; and
(2) their agencies;
regardless of whether it is performed on property owned or leased by the political subdivision or agency.
(b) This chapter does not apply to an officer or agent who, on behalf of a municipal utility, maintains, extends, and installs services of the utility if the necessary work is done by the employees of the utility.
(c) This chapter does not apply to hospitals organized or operated under IC 16-22-1 through IC 16-22-5 or IC 16-23-1, unless the public work is financed in whole or in part with cumulative building fund revenue.
(d) This chapter does not apply to tax exempt Indiana nonprofit corporations leasing and operating a city market owned by a political subdivision.
(e) As an alternative to this chapter, the governing body of a political subdivision or its agencies may do the following:
(1) Enter into a design-build contract as permitted under IC 5-30.
(2) Participate in a utility efficiency program or
(f) This chapter does not apply to a person that has entered into an operating agreement with a political subdivision or an agency of a political subdivision under IC 5-23.
(g) In addition to this chapter, IC 22-2-15 applies to contractors, subcontractors, employees, and independent contractors with respect to construction services performed on public work projects.
