By one vote the West Virginia Senate on Monday passed a bill that seeks to simplify the relationship between independent contractors and employees.
However, opponents of the bill say it’s an attempt let some employers off the hook and suppress West Virginians’ access to protections under workers’ compensation and unemployment laws.
If it becomes law, the bill will set up what Senate Judiciary Chairman Charles Trump called a “fairly bright line test” to determine when someone is classified as a full-time employee versus an independent contractor.
The thinking behind the bill is to clarify the definition of an independent contractor that currently has different interpretations in West Virginia’s workers’ compensation and unemployment laws as well as the West Virginia Human Rights Act and the West Virginia Wage Payment and Collection Act, said Trump, R-Morgan.
“The idea behind this bill is, so we can have a uniform standard among all these public agencies, is to bring clarity, so we don’t have different tests for every different thing,” Trump said.
Senators who were opposed to the bill said the measure would make it easier for employers to classify their staff as independent contractors and deny them workers’ compensation and unemployment benefits as well as avoid paying the cost for certain supplies and travel expenses for those workers.
Sen. Bob Beach, D-Monongalia, called the bill an attempt at “soft oppression” of working West Virginians. Sen. Bill Hamilton, R-Upshur, said the bill likely would lead to more lawsuits without workers’ compensation protections for Mountain State workers.
Sen. Mike Romano, R-Harrison, said the bill was bad for West Virginians because it had been pushed by the American Legislative Exchange Council, or ALEC, a conservative nonprofit organization that drafts sample legislation for use by state lawmakers throughout the United States.
He said the measure would create even more confusion for people who are independent contractors, who, by definition, would be responsible for paying their taxes without their company withholding it for them each year.
“That’s using a better marketing position to oppress our employees,” Romano said.
If it becomes law, SB 528 would establish four elements that would make someone an independent contractor as opposed to a full-time employee of a company.
In the contract, the contractor also would acknowledge they are not covered by workers’ compensation or unemployment benefits.
An independent contractor also has control over the manner and means by which they do their work, meaning they can, among other things, set their own hours and do the work in the way that best suits them and adheres to the contract they signed.
The fourth element of the test requires independent contractors to meet at least three attributes set out in the law. Among those attributes include the contractor’s ability to take other work while under contract and their abilities to advertise their services to other employers and hire their own employees.
The bill will advance to the House of Delegates for consideration.