YES:
MR. SPEAKER:
Your Committee on Labor and Employment , to which was referred Senate Bill
453 , has had the same under consideration and begs leave to report the same back to the
House with the recommendation that said bill be amended as follows:
the employer's insurer so far as applicable. However, the inclusion of
an employer's insurer within this definition does not allow an
employer's insurer to avoid payment for services rendered to an
employee with the approval of the employer. The term also includes an
employer that provides on-the-job training under the federal School to
Work Opportunities Act (20 U.S.C. 6101 et seq.) to the extent set forth
in
IC 22-3-2-2.5.
(b) "Employee" means every person, including a minor, in the
service of another, under any contract of hire or apprenticeship, written
or implied, except one whose employment is both casual and not in the
usual course of the trade, business, occupation, or profession of the
employer.
(1) An executive officer elected or appointed and empowered in
accordance with the charter and bylaws of a corporation, other
than a municipal corporation or governmental subdivision or a
charitable, religious, educational, or other nonprofit corporation,
is an employee of the corporation under
IC 22-3-2
through
IC 22-3-6.
(2) An executive officer of a municipal corporation or other
governmental subdivision or of a charitable, religious,
educational, or other nonprofit corporation may, notwithstanding
any other provision of
IC 22-3-2
through
IC 22-3-6
, be brought
within the coverage of its insurance contract by the corporation
by specifically including the executive officer in the contract of
insurance. The election to bring the executive officer within the
coverage shall continue for the period the contract of insurance is
in effect, and during this period, the executive officers thus
brought within the coverage of the insurance contract are
employees of the corporation under
IC 22-3-2
through
IC 22-3-6.
(3) Any reference to an employee who has been injured, when the
employee is dead, also includes the employee's legal
representatives, dependents, and other persons to whom
compensation may be payable.
(4) An owner of a sole proprietorship may elect to include the
owner as an employee under
IC 22-3-2
through
IC 22-3-6
if the
owner is actually engaged in the proprietorship business. If the
owner makes this election, the owner must serve upon the owner's
insurance carrier and upon the board written notice of the
election. No owner of a sole proprietorship may be considered an
employee under
IC 22-3-2
through
IC 22-3-6
until the notice has
been received. If the owner of a sole proprietorship is an
independent contractor in the construction trades and does not
make the election provided under this subdivision, the owner
must obtain an affidavit of exemption under
IC 22-3-2-14.5.
(5) A partner in a partnership may elect to include the partner as
an employee under
IC 22-3-2
through
IC 22-3-6
if the partner is
actually engaged in the partnership business. If a partner makes
this election, the partner must serve upon the partner's insurance
carrier and upon the board written notice of the election. No
partner may be considered an employee under
IC 22-3-2
through
IC 22-3-6
until the notice has been received. If a partner in a
partnership is an independent contractor in the construction trades
and does not make the election provided under this subdivision,
the partner must obtain an affidavit of exemption under
IC 22-3-2-14.5.
(6) Real estate professionals are not employees under
IC 22-3-2
through
IC 22-3-6
if:
(A) they are licensed real estate agents;
(B) substantially all their remuneration is directly related to
sales volume and not the number of hours worked; and
(C) they have written agreements with real estate brokers
stating that they are not to be treated as employees for tax
purposes.
(7) A person is an independent contractor in the construction
trades and not an employee under
IC 22-3-2
through
IC 22-3-6
if
the person is an independent contractor under the guidelines of
the United States Internal Revenue Service.
(8) 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 1057, to a motor
carrier is not an employee of the motor carrier for purposes of
IC 22-3-2
through
IC 22-3-6.
The owner-operator may elect to be
covered and have the owner-operator's drivers covered under a
worker's compensation insurance policy or authorized
self-insurance that insures the motor carrier if the owner-operator
pays the premiums as requested by the motor carrier. An election
by an owner-operator under this subdivision does not terminate
the independent contractor status of the owner-operator for any
purpose other than the purpose of this subdivision.
(9) A member or manager in a limited liability company may elect
to include the member or manager as an employee under
IC 22-3-2
through
IC 22-3-6
if the member or manager is actually
engaged in the limited liability company business. If a member or
manager makes this election, the member or manager must serve
upon the member's or manager's insurance carrier and upon the
board written notice of the election. A member or manager may
not be considered an employee under
IC 22-3-2
through
IC 22-3-6
until the notice has been received.
(10) An unpaid participant under the federal School to Work
Opportunities Act (20 U.S.C. 6101 et seq.) is an employee to the
extent set forth in
IC 22-3-2-2.5.
(11) An employee who is placed by a temporary employment
agency and who, in the course of employment, performs
personal services on a temporary basis to a third party under
the direction and control of the third party, is an employee of
the third party under
IC 22-3-2
through
IC 22-3-6.
This
exception does not include independent contractors in the
construction trades, as set forth in subdivision (7).
(c) "Minor" means an individual who has not reached seventeen
(17) years of age.
(1) Unless otherwise provided in this subsection, a minor
employee shall be considered as being of full age for all purposes
of
IC 22-3-2
through
IC 22-3-6.
(2) If the employee is a minor who, at the time of the accident, is
employed, required, suffered, or permitted to work in violation of
IC 20-8.1-4-25
, the amount of compensation and death benefits,
as provided in
IC 22-3-2
through
IC 22-3-6
, shall be double the
amount which would otherwise be recoverable. The insurance
carrier shall be liable on its policy for one-half (1/2) of the
compensation or benefits that may be payable on account of the
injury or death of the minor, and the employer shall be liable for
the other one-half (1/2) of the compensation or benefits. If the
employee is a minor who is not less than sixteen (16) years of age
and who has not reached seventeen (17) years of age and who at
the time of the accident is employed, suffered, or permitted to
work at any occupation which is not prohibited by law, this
subdivision does not apply.
(3) A minor employee who, at the time of the accident, is a
student performing services for an employer as part of an
approved program under
IC 20-10.1-6-7
shall be considered a
full-time employee for the purpose of computing compensation
for permanent impairment under
IC 22-3-3-10.
The average
weekly wages for such a student shall be calculated as provided
in subsection (d)(4).
(4) The rights and remedies granted in this subsection to a minor
under
IC 22-3-2
through
IC 22-3-6
on account of personal injury
or death by accident shall exclude all rights and remedies of the
minor, the minor's parents, or the minor's personal
representatives, dependents, or next of kin at common law,
statutory or otherwise, on account of the injury or death. This
subsection does not apply to minors who have reached seventeen
(17) years of age.
(d) "Average weekly wages" means the earnings of the injured
employee in the employment in which the employee was working at the
time of the injury during the period of fifty-two (52) weeks
immediately preceding the date of injury, divided by fifty-two (52),
except as follows:
(1) If the injured employee lost seven (7) or more calendar days
during this period, although not in the same week, then the
earnings for the remainder of the fifty-two (52) weeks shall be
divided by the number of weeks and parts thereof remaining after
the time lost has been deducted.
(2) Where the employment prior to the injury extended over a
period of less than fifty-two (52) weeks, the method of dividing
the earnings during that period by the number of weeks and parts
thereof during which the employee earned wages shall be
followed, if results just and fair to both parties will be obtained.
Where by reason of the shortness of the time during which the
employee has been in the employment of the employee's employer
or of the casual nature or terms of the employment it is
impracticable to compute the average weekly wages, as defined
in this subsection, regard shall be had to the average weekly
amount which during the fifty-two (52) weeks previous to the
injury was being earned by a person in the same grade employed
at the same work by the same employer or, if there is no person so
employed, by a person in the same grade employed in the same
class of employment in the same district.
(3) Wherever allowances of any character made to an employee
in lieu of wages are a specified part of the wage contract, they
shall be deemed a part of his earnings.
(4) In computing the average weekly wages to be used in
calculating an award for permanent impairment under
IC 22-3-3-10
for a student employee in an approved training
program under
IC 20-10.1-6-7
, the following formula shall be
used. Calculate the product of:
(A) the student employee's hourly wage rate; multiplied by
(B) forty (40) hours.
The result obtained is the amount of the average weekly wages for
the student employee.
(e) "Injury" and "personal injury" mean only injury by accident
arising out of and in the course of the employment and do not include
a disease in any form except as it results from the injury.
(f) "Billing review service" refers to a person or an entity that
reviews a medical service provider's bills or statements for the purpose
of determining pecuniary liability. The term includes an employer's
worker's compensation insurance carrier if the insurance carrier
performs such a review.
(g) "Billing review standard" means the data used by a billing
review service to determine pecuniary liability.
(h) "Community" means a geographic service area based on zip
code districts defined by the United States Postal Service according to
the following groupings:
(1) The geographic service area served by zip codes with the first
three (3) digits 463 and 464.
(2) The geographic service area served by zip codes with the first
three (3) digits 465 and 466.
(3) The geographic service area served by zip codes with the first
three (3) digits 467 and 468.
(4) The geographic service area served by zip codes with the first
three (3) digits 469 and 479.
unpaid balance.
(c) The disqualifications provided in this section shall be subject to
the following modifications:
(1) An individual shall not be subject to disqualification because
of separation from his prior employment if:
(A) he left to accept with another employer previously secured
permanent full-time work which offered reasonable
expectation of betterment of wages or working conditions and
thereafter was employed on said job for not less than ten (10)
weeks;
(B) having been simultaneously employed by two (2)
employers, he leaves one (1) such employer voluntarily
without good cause in connection with the work but remains
in employment with the second employer with a reasonable
expectation of continued employment; or
(C) he left to accept recall made by a base-period employer.
(2) An individual whose unemployment is the result of medically
substantiated physical disability and who is involuntarily
unemployed after having made reasonable efforts to maintain the
employment relationship shall not be subject to disqualification
under this section for such separation.
(3) An individual who left work to enter the armed forces of the
United States shall not be subject to disqualification under this
section for such leaving of work.
(4) An individual whose employment is terminated under the
compulsory retirement provision of a collective bargaining
agreement to which the employer is a party, or under any other
plan, system, or program, public or private, providing for
compulsory retirement and who is otherwise eligible shall not be
deemed to have left his work voluntarily without good cause in
connection with the work. However, if such individual
subsequently becomes reemployed and thereafter voluntarily
leaves work without good cause in connection with the work, he
shall be deemed ineligible as outlined in this section.
(5) An otherwise eligible individual shall not be denied benefits
for any week because he is in training approved under Section
236(a)(1) of the Trade Act of 1974, nor shall the individual be
denied benefits by reason of leaving work to enter such training,
provided the work left is not suitable employment, or because of
the application to any week in training of provisions in this law
(or any applicable federal unemployment compensation law),
relating to availability for work, active search for work, or refusal
to accept work. For purposes of this subdivision, the term
"suitable employment" means with respect to an individual, work
of a substantially equal or higher skill level than the individual's
past adversely affected employment (as defined for purposes of
the Trade Act of 1974), and wages for such work at not less than
eighty percent (80%) of the individual's average weekly wage as
determined for the purposes of the Trade Act of 1974.
(6) An individual is not subject to disqualification because of
separation from the individual's prior employment if:
(A) the prior employment was outside the individual's labor
market;
(B) the individual left to accept previously secured full-time
work with an employer in the individual's labor market; and
(C) the individual actually became employed with the
employer in the individual's labor market.
(7) An individual who, but for the voluntary separation to move
to another labor market to join a spouse who had moved to that
labor market, shall not be disqualified for that voluntary
separation, if the individual is otherwise eligible for benefits.
Benefits paid to the spouse whose eligibility is established under
this subdivision shall not be charged against the employer from
whom the spouse voluntarily separated.
As used in this subsection and in subdivision (8), "labor market"
means the area surrounding an individual's permanent residence,
outside which the individual cannot reasonably commute on a
daily basis. In determining whether an individual can reasonably
commute under this subdivision, the department shall consider
the nature of the individual's job.
(8) The following provisions apply to an individual employed
by a temporary employment agency (as defined in
IC 22-5-6-7
):
(A) An individual who last was employed by a temporary
employment agency is not considered to have quit
employment voluntarily without good cause if the
individual did not contact the temporary employment
agency for reassignment upon completion of the
assignment.
(B) When an individual who last was employed by a
temporary employment agency:
(i) completes an assignment with a third party;
(ii) has indicated availability to accept a new assignment
with a third party; and
(iii) is not offered a new assignment that is within the
labor market and that has substantially equivalent
compensation, benefits, and working conditions;
the individual is eligible for benefits, subject to the waiting
period as set forth in
IC 22-4-14-4.
(C) The failure of the individual to contact the temporary
employment agency is not considered a disqualification if
the temporary employment firm has violated any provision
of state or federal law protecting employees of temporary
employment with respect to the individual.
(d) "Discharge for just cause" as used in this section is defined to
include but not be limited to:
(1) separation initiated by an employer for falsification of an
employment application to obtain employment through
subterfuge;
(2) knowing violation of a reasonable and uniformly enforced rule
of an employer;
(3) unsatisfactory attendance, if the individual cannot show good
cause for absences or tardiness;
(4) damaging the employer's property through willful negligence;
(5) refusing to obey instructions;
(6) reporting to work under the influence of alcohol or drugs or
consuming alcohol or drugs on employer's premises during
working hours;
(7) conduct endangering safety of self or coworkers; or
(8) incarceration in jail following conviction of a misdemeanor or
felony by a court of competent jurisdiction or for any breach of
duty in connection with work which is reasonably owed an
employer by an employee.
A NEW CHAPTER TO READ AS FOLLOWS [EFFECTIVE JULY
1, 2001]:
Chapter 6. Protection for Temporary Employees in the
Construction Trades
Sec. 1. As used in this chapter, "benefits" means any of the
following:
(1) Accrual of seniority.
(2) Credit for length of service.
(3) Disability and health insurance.
(4) Holiday pay or time off.
(5) Pension entitlement accrual.
(6) Sick leave.
(7) Vacation leave or pay.
Benefits are compensation provided in addition to wages.
Sec. 2. As used in this chapter, "client company" means a
business that leases the services of employees or receives services
or functions through temporary employment agencies.
Sec. 3. As used in this chapter, "construction trades" means any
trade or occupation involving construction, alteration, remodeling,
repairing, wrecking or demolition, addition to, or improvement of
any building, highway, road, railroad, dam, bridge, structure, or
excavation.
Sec. 4. As used in this chapter, "department" refers to the
department of labor.
Sec. 5. As used in this chapter, "liquidity fee" means a penalty
charged by a temporary employment agency against:
(1) a temporary employee for accepting a position of
employment with the client company; or
(2) a client company for hiring a temporary employee.
Sec. 6. As used in this chapter, "substantially equivalent work"
means work on jobs:
(1) the performance of which requires equal skill, effort, and
responsibility; and
(2) under similar working conditions.
Sec. 7. As used in this chapter, "temporary employment agency"
means an employer that for a fee:
(1) recruits;
(2) procures;
(3) refers;
(4) places; or
(5) employs;
workers to perform personal services on a temporary basis to a
third party client company under the direction and control of the
third party client company.
Sec. 8. As used in this chapter, "temporary employee" means a
temporary employment agency employee who, in the course of
employment, performs personal services in the construction trades
on a temporary basis to a third party client company under the
direction and control of the third party client company. The term
does not include independent contractors in the construction
trades.
Sec. 9. A temporary employment agency shall post in its labor
hall where temporary employees are required to appear for
assignment to work, or if there is no such labor hall, provide to
each temporary employee seeking employment, a list of all client
companies at which work is available through the temporary
employment agency. The list shall include the following for each
job opportunity posted:
(1) The name and address of the client company and the exact
address of the worksite, directions to the worksite, and a
telephone number at which a temporary employee could be
reached in an emergency situation.
(2) The type of job opportunity for temporary employees.
(3) A detailed description of the work to be performed by the
temporary employee, including any requirements for special
attire, accessories, tools, or safety equipment.
(4) The method of computing compensation and the amount
of compensation and benefits to be paid for the work, and the
overtime time rate of compensation if such might be available.
(5) Any cost of the transportation to the temporary employee.
(6) The duration of the work to be performed by the
temporary employee, including:
(A) the time of day the work will begin;
(B) the time of day the work will end;
(C) the schedule of days on which the work will be
performed;
(D) when the work is expected to end; and
(E) whether there is any possibility of overtime work or
extension of the work past the anticipated end date.
(7) Any safety or hazardous material information that is
available to the temporary employment agency shall be made
available to the temporary employee. Such information shall
include, but is not limited to, a complete and accurate
description of worksite hazards to which the temporary
employee may become exposed, including any hazardous
materials that the temporary employee may be required to
use or handle and any physical conditions or work practices
that do not comply with applicable occupational health and
safety standards.
(8) Whether a meal is provided, either by the temporary
employment agency or the client company, and any cost of the
meal to the temporary employee.
Sec. 10. A temporary employment agency shall:
(1) compensate temporary employees for work performed in
the manner of payment set forth in
IC 22-2-5-1
;
(2) offer pay and benefits equal to those provided to the
permanent employees of the client company to temporary
employees who have been employed at the premises of the
client company for a total of ninety (90) days or more,
whether or not continuously, and who perform substantially
equivalent work compared to employees of the client company
where the temporary employees work;
(3) subject to subdivision (2), compensate temporary
employees at a rate at or above the federal minimum wage
which rate shall not be reduced to less than the federal
minimum wage by deductions other than those permitted by
federal or state law;
(4) include a written notification with each payment of wages
to the temporary employee, which shall be included on the
temporary help employee's statement of earnings and
deductions, specifying:
(A) the hourly rate paid for the temporary help employee;
(B) the itemized deductions made from the wage payment
made to the temporary help employee by the temporary
agency; and
(C) an itemized list of benefits provided to the temporary
help employee by the temporary employment agency; and
(5) provide each temporary employee with an annual earnings
summary not later than February 1 for the preceding
calendar year.
Sec. 11. A temporary employment agency shall not charge a
temporary employee:
(1) for safety equipment, clothing, tools, accessories, or any
other items required by the nature of the work, either by law,
custom, or a requirement of the client company. This
subdivision does not preclude the temporary employment
agency from charging the temporary employee the market
value of items temporarily provided to the temporary
employee by the temporary employment agency if the
temporary employee willfully fails to return the items to the
temporary employment agency. However, no charge may be
made for items damaged through ordinary use or lost through
no fault of the temporary employee;
(2) for merchandise or supplies other than those referenced in
subdivision (1), which the temporary employment agency
makes available for purchase, at a higher price than
merchandise or supplies sold to others, as provided in
IC 22-2-4-3
;
(3) to transport the temporary employee to or from a
worksite;
(4) for directly or indirectly cashing a temporary employee's
paycheck; or
(5) if a meal is provided at the worksite by the temporary
employment agency, more than the actual cost of providing
the meal, but the purchase of a meal may not be a condition
of employment.
Sec. 12. (a) A temporary employment agency that operates a
labor hall where temporary workers are required to appear:
(1) for assignment to work; or
(2) payment of compensation;
shall provide facilities for temporary employees waiting at the
labor hall for a job assignment that includes restroom facilities,
drinking water, and sufficient seating.
(b) A temporary employment agency shall insure at the
minimum rate required by the law of the state in which the motor
vehicle is registered any motor vehicle owned or operated by the
temporary employment agency and used for the transportation of
temporary employees.
(c) All advertisements of a temporary employment agency must
contain the correct name of the temporary employment agency and
one (1) of the following:
(1) The street address of the place of business of the
temporary employment agency.
(2) The correct telephone number of the temporary
employment agency at its place of business.
Sec. 13. (a) No temporary employment agency shall restrict the
right of:
(1) a temporary employee to accept a permanent position with
a client company to whom the temporary employee is referred
for temporary employment; or
(2) the client company to offer such employment to a
temporary employee of the temporary employment agency.
However, this chapter does not restrict the temporary services
company from receiving a reasonable liquidity fee from the client
company.
(b) No temporary employment agency shall make or give, or
cause to be made or given, any false, leading, or deceptive
advertisements, information, or representation concerning the
services, compensation, or benefits, or work opportunities that the
client company will provide to the temporary employees.
Sec. 14. The worker's compensation insurance premiums of a
temporary employment agency shall be determined and paid based
on the experience rating of the client company for which the
temporary employee performs services if the client company has
sufficient worker's compensation premium volume to be
experience rated. Otherwise, the premiums shall be the rate
approved for an employer that cannot be experience rated.
Sec. 15. A temporary employment agency or client company
shall not:
(1) discharge;
(2) discipline; or
(3) penalize in any other manner;
a temporary employee because the temporary employee, or a
person acting on behalf of the temporary employee, reports a
violation or alleged violation of section 9, 10, 11, 12, or 13 of this
chapter to the temporary employment agency or to a local or state
official, or because the temporary employee, or a person acting on
behalf of the temporary employee, exercises any right under this
chapter.
Sec. 16. A temporary employment agency that violates section
9, 11, 12, 13, or 15 of this chapter commits a Class A misdemeanor.
Sec. 17. (a) A temporary employee may bring a civil action
against a temporary employment agency to enforce section 10 of
this chapter and seek compensation for charges made in violation
of section 11 of this chapter within two (2) years after the alleged
violation.
(b) If a temporary employment agency violates section 10 of this
chapter, the court may do the following:
(1) Award:
(A) treble damages for loss of wages and other benefits;
and
(B) court costs and reasonable attorney's fees;
to the prevailing temporary help employee.
(2) Enjoin further violations of this chapter by the temporary
employment agency.
Sec. 18. (a) The department and its authorized inspectors and
agents shall enforce this chapter. The department and its
inspectors and agents may visit and inspect, at all reasonable hours
and as often as practicable and necessary, all establishments
governed by this chapter.
(b) When requested in writing by the department, the attorney
general shall assist the department in the enforcement of this
chapter against all violations.
(c) In addition to the civil action that may be brought by the
temporary help employee under section 17(a) of this chapter, a
temporary employment agency that violates this chapter may be
assessed a civil penalty by the department of not less than two
thousand five hundred dollars ($2,500) and not more than five
thousand dollars ($5,000) for each offense. The department shall
collect the civil penalties and shall disburse the civil penalties as
reimbursement of wages to those temporary help employees who
have been found by the department to have been damaged by the
temporary employment agency's failure to comply with this
chapter, with any remaining balance deposited in the state general
fund.
(d) A civil penalty assessed under subsection (c):
(1) is subject to
IC 4-21.5-3-6
; and
(2) becomes effective without a proceeding under
IC 4-21.5-3
unless a person requests an administrative review not later
than thirty (30) days after notice of the assessment is given.".
and when so amended that said bill do pass.