An Act To Promote Workplace Safety and Certainty within the Construction Industry by Authorizing the Workers' Compensation Board To Issue Construction Contractor Certificates
Maine Legislature, Session 123, LD 1275
Committee: Labor
Sponsors: WATSON, BERRY, CLARK, DILL, PRIEST, BARTLETT, MILLS, PERRY
Amends: 39-A MRSA §102, 39-A MRSA §105-A, 39-A MRSA §106

Legislative Document 
No. 1275 
H.P.903 
House of Representatives, March 8,2007 
An Act To Promote Workplace Safety and Certainty within the 
Construction Industry by Authorizing the Workers' Compensation 
Board To Issue Construction Contractor Certificates 
Reference to the Committee on Labor suggested and ordered printed. 
Presented by Representative WATSON of Bath. 
7Jf~m.71!d£~ 
MILLICENT M. MacFARLAND 
Clerk 
to 
Cosponsored by Representatives: BERRY of Bowdoinham, CLARK of Millinocket, DILL of 
Cape Elizabeth, PRIEST of Brunswick, Senators: BARTLETT of Cumberland, MILLS of 
Somerset, PERRY of Penobscot. 
Printed on rt'l.:"ydeJ paper 
Be it enacted by the People of the State of Maine as follows: 
Sec. 1. 39-A MRSA §102, sub-§ll, ~A, as amended by PL 2003, c. 344, Pt. 0, 
§27 and c. 423, §4 and affected by §5, is further amended to read: 
A. 
"Employee" includes officials of the State and officials of counties, cities, towns, 
water districts and all other quasi-public corporations of a similar character, every 
duly elected or appointed executive officer of a private corporation other than a 
charitable, religious, educational or other nonprofit corporation, and every person in 
the service of another under any contract of hire, express or implied, oral or written, 
except: 
(I) 
Persons engaged in manttme employment or in interstate or foreign 
commerce who are within the exclusive jurisdiction of admiralty law or the laws 
of the United States, except that this section may not be construed to exempt 
from the definition of "employee" a person who is employed by the State and is 
thereby barred by the State's sovereign immunity from bringing a claim against 
that person's employer under admiralty law or other laws of the United States for 
claims that are otherwise cognizable under this Act; 
(2) Firefighters, including volunteer firefighters who are active members of a 
volunteer fire association as defined in Title 30-A, section 3151; volunteer 
emergency medical services persons as defined in Title 32, section 83, subsection 
12; and police officers are employees within the meaning of this Act. 
In 
computing the average weekly wage of an injured volunteer firefighter or 
volunteer emergency services person, the average weekly wage must be taken to 
be the earning capacity of the injured employee in the occupation in which the 
employee is regularly engaged. Employers who hire workers within this State to 
work outside the State may agree with these workers that the remedies under this 
Act are exclusive as regards injuries received outside this State arising out of and 
in the course of that employment; and all contracts of hiring in this State, unless 
otherwise specified, are presumed to include such an agreement. Any reference to 
an employee who has been injured must, when the employee is dead, include the 
employee's legal representatives, dependents and other persons to whom 
compensation may be payable; 
(3) Notwithstanding any other provisions of this Act, any charitable, religious, 
educational or other nonprofit corporation that may be or may become an 
assenting employer under this Act may cause any duly elected or appointed 
executive officer to be an employee of the corporation by specifically including 
the executive officer among those to whom the corporation secures payment of 
compensation in conformity with chapter 5; and the executive officer must 
remain an employee of the corporation under this Act while such payment is so 
secured. With respect to any corporation that secures compensation by making a 
contract of workers' compensation insurance, specific inclusion of the executive 
officer in the contract causes the officer to be an employee of the corporation 
under this Act; 
(4) Except for persons engaged in harvesting of forest products, any person 
who, in a written statement to the board, waives all the benefits and privileges 
Page I - 123LR1257(Ol)-1 
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provided by the workers' compensation laws, provided that the board has found 
that person to be a bona fide owner of at least 20% of the outstanding voting 
stock of the corporation by which that person is employed or a shareholder of the 
professional corporation by which that person is employed and that this waiver 
was not a prerequisite condition to employment. 
For the purposes of this 
subparagraph, the term "professional corporation" means a domestic or foreign 
professional corporation as defined in Title 13, section 723. 
Any person may revoke or rescind that person's waiver upon 30 days' written 
notice to the board and that person's employer. The parent, spouse or child of a 
person who has made a waiver under the previous sentence may state, in writing, 
that the parent, spouse or child waives all the benefits and privileges provided by 
the workers' compensation laws if the board finds that the waiver is not a 
prerequisite condition to employment and if the parent, spouse or child is 
employed by the same corporation that employs the person who has made the 
first waiver; 
(5) 
Except for persons engaged in harvesting of forest products, the parent, 
spouse or child of a sole proprietor who is employed by that sole proprietor or the 
parent, spouse or child of a partner who is employed by the partnership of that 
partner or the parent, spouse or child of a member of a limited liability company 
who is employed by that limited liability company may state, in writing, that the 
parent, spouse or child waives all the benefits and privileges provided by the 
workers' compensation laws if the board finds that the waiver is not a prerequisite 
condition to employment; 
(6) Employees of an agricultural employer when harvesting 150 cords of wood 
or less each year from farm wood lots, provided that the employer is covered 
under an employer's liability insurance policy as required in subsection 17; 
(7) An independent contractor; 
(8) Except as otherwise provided in section 401 and section 105-A, if a person 
employs an independent contractor, any employee of the independent contractor 
is not considered an employee of that person for the purposes of this Act. The 
person who employs an independent contractor is not responsible for providing 
workers' compensation insurance covering the payment of compensation and 
benefits to the employees of the independent contractor. An insurance company 
may not charge a premium to any person for any employee excluded by this 
subparagraph; or 
(9) A state or municipal employee while the employee is on assignment as a 
certified disaster service volunteer for the American Red Cross pursuant to Title 
5, section 19-B or Title 30-A, section 2705. 
Duties performed while on a 
volunteer disaster relief assignment for the American Red Cross may not be 
considered a work assignment by a state agency or municipality. 
Sec. 2. 39-A MRSA §102, sub-§13, as enacted by PL 1991, c. 885, Pt. A, §8 and 
as affected by §§9 to 11, is amended to read: 
13. Independent contractor. "Independent contractor" means a person working 
under a construction contractor certificate under section lOS-A; or a person who performs 
services for another under contract, but who is not under the essential control or 
superintendence of the other person while performing those services. In determining 
whether such a relationship exists, the board shall consider the following factors: 
A. 
Whether or not a contract exists for the person to perform a certain piece or kind 
of work at a fixed price; 
B. 
Whether or not the person employs assistants with the right to supervise their 
activities; 
C. 
Whether or not the person has an obligation to furnish any necessary tools, 
supplies and materials; 
D. 
Whether or not the person has the right to control the progress of the work, 
except as to final results; 
E. 
Whether or not the work is part of the regular business of the employer; 
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F. 
Whether or not the person's business or occupation is typically of an independent 
nature; 
G. 
The amount of time for which the person is employed; and 
H. 
The method of payment, whether by time or by job. 
In applying these factors, the board may not give any particular factor a greater weight 
than any other factor, nor may the existence or absence of anyone factor be decisive. 
The board shall consider the totality of the relationship in determining whether an 
employer exercises essential control or superintendence of the person. 
Sec. 3. 39-A MRSA §105-A is enacted to read: 
§105-A. Construction contractor certificates 
1. Definitions. As used in this section, unless the context otherwise indicates, the 
following terms have the following meanings. 
A. "Construction contractor certificate" or "certificate" means a certificate issued 
pursuant to subsection 5. 
B. "Construction site" means a location where a structure that is attached or will be 
attached to real property is constructed, altered or remodeled. 
C. "Construction work" includes all or any part of the construction, alteration or 
remodeling of a structure. 
D. "Hiring agent" means a person or entity that employs or contracts with a person to 
perform construction work, but excludes a homeowner who contracts for residential 
construction work. 
E. 
"Person" means a sole proprietor, a working member of a partnership or a 
working member of a limited liability company who has not elected to be personally 
covered bv this Act in accordance with section 102, subsection 11, paragraph B. 
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2. Persons deemed employees. Beginning January 1, 2008, a person is deemed an 
employee in accordance with this subsection. 
A. A person performing construction work on a construction site for a hiring agent is 
deemed to be the employee of the hiring agent for purposes of this Act, unless that 
person is working under a valid contractor certificate. 
B. If a person who is deemed an employee under paragraph A has not secured the 
payment of compensation under sections 401 to 407, that person's employees, if any, 
are deemed employees of the person's hiring agent. 
3. 
Construction contractor certificate; presumption. 
A person engaged in 
construction work on a construction site may apply to the board for a construction 
contractor certificate. A person working under a valid certificate is conclusively 
presumed to be an independent contractor and the person is considered to have waived all 
rights and benefits under this Act unless and until the person secures workers' 
compensation coverage. 
4. 
Application. 
An applicant for a certificate shall submit to the board an 
application under oath on a form prescribed by the board and containing the following: 
A. The applicant's name and address; 
B. The applicant's social security number; 
C. 
Each occupation for which the applicant is seeking construction contractor 
certification; and 
D. Documentation as provided by board rule to assist in determining if the applicant 
works as an employee or independent contractor, including, but not limited to, 
whether the applicant has an independently established business and is free of control 
of hiring agents for whom the applicant expects to perform work. 
The application form must contain language in bold print confirming that, if allowed, the 
applicant has waived all rights under this Act and the consequences of such waiver. 
5. Issuance of certificate. The board shall issue a construction contractor certificate 
to an applicant if: 
A. 
The board determines that an applicant meets the definition of independent 
contractor set forth in section 102, subsection 13; or 
B. 
The applicant demonstrates that the applicant has secured the payment of 
compensation under sections 401 to 407. 
Once issued, a certificate remains in effect for 2 years unless suspended or revoked 
pursuant to subsection 10 or cancelled by the holder. The certificate must inform the 
holder that the holder has waived all rights under this Act for work performed under the 
certificate and that the holder may suspend or revoke the certificate at any time upon 
written notice to the board and current hiring agent, if any. 
6. Appeal. If the board denies an application for a certificate, the applicant may 
appeal the denial in accordance with section 105, subsection 4. 
7. Validity of status under certificate. A person is working under a certificate only 
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if performing work in the trade, business, occupation or profession listed on the person's 
certificate and the person and the hiring agent do not have a written or oral agreement that 
the person's status with respect to the work at issue is that of an employee. 
8. Records retention. A hiring agent shall maintain copies of all certificates that 
relate to the independent contractors it uses in the event of safety inspections and 
premium audits performed by its workers' compensation insurer, if any. 
9. Penalty for coercion, intimidation, deceit. A hiring agent that willfully acts to 
circumvent the provisions of this section by using coercion, intimidation or deceit to 
encourage a person who would otherwise be considered an employee within the meaning 
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of this Act to apply for a certificate for the purpose of evading an obligation to provide 
workers' compensation coverage is subject to applicable penalty provisions, including but 
not limited to those under section 360, subsection 2. 
10. Suspension or revocation of certificate. A certificate may be suspended or 
revoked in accordance with this subsection. 
A. The board may suspend a certificate for a specific business relationship if the 
board determines that the hiring agent exerts or retains a greater right of control or 
actual control than represented in the application. 
B. The board may revoke a certificate for good cause including a determination that 
the certificate holder provided misrepresentations in the application or renewal form, 
altered or amended the application or renewal form or supporting documentation or 
failed to cooperate with the board in providing information relevant to the continued 
validity of the certificate. 
C. 
A decision by the board to suspend or revoke a certificate takes effect upon 
issuance of the decision. 
D. 
Suspension or revocation of the certificate does not invalidate the certificate 
holder's waiver of rights and benefits under this Act for the period prior to notice to 
the hiring agent by the board of the board's decision to suspend or revoke the 
certificate. 
E. A decision by the board to suspend or revoke a certificate mav be appealed in the 
same manner as provided in subsection 6 for denial of an application for a certificate. 
11. Rules. The board shall adopt rules and create application forms in order to 
implement this section. Rules adopted pursuant to this subsection are major substantive 
rules as defined in Title 5, chapter 375, subchapter 2-A. 
Sec. 4. 39-A MRSA §106, as amended by PL 1995, c. 694, Pt. D, §63 and as 
affected by Pt. E, §2, is further amended to read: 
§ 1 06. Invalidity of waiver of rights; claims not assignable 
No agreement by an employee, unless approved by the board or by the Commissioner 
of Labor, to waive the employee's rights to compensation under this Act is valid. No 
claims for compensation under this Act are assignable or subject to attachment or liable in 
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any way for debt, except for the enforcement of a current support obligation or support 
arrears pursuant to Title 19-A, chapter 65, subchapter II 2., article 3 or Title 19-A, chapter 
65, subchapter ill 1, or for reimbursement of general assistance pursuant to Title 22, 
section 4318. A person who possesses and is working under a construction contractor 
certificate issued pursuant to section 105-A waives all rights and benefits under this Act. 
Sec. 5. Fee for application for construction contractor certificate. The 
Workers' Compensation Board shall endeavor to process applications for construction 
contractor certificates under the Maine Revised Statutes, Title 39-A, section 105-A within 
its existing resources. If the board determines that it must establish, through rulemaking 
authorized pursuant to Title 39-A, section 105-A, subsection 11, a fee for processing such 
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applications, the fee may not exceed $50 per application. 
SUMMARY 
This bill requires the Workers' Compensation Board to issue a construction contractor 
cel1ificate to a person working in the construction industry upon proof that the person 
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functions in a particular trade or occupation as an independent contractor rather than an 
employee or upon proof that the person has secured the payment of compensation by 
obtaining insurance coverage. 
The certificate creates a binding presumption that the 
person is an independent contractor so long as the person works in the trade, business, 
occupation or profession identified in the certificate. The application for and issuance of 
a construction contractor certificate constitutes a waiver of rights under the Maine 
Workers' Compensation Act of 1992. Construction contractor certificates are effective 
for 2-year periods and may be renewed. A person who engages in construction work 
without a certificate is deemed an employee of the person's hiring agent. An independent 
contractor may revoke the certificate or the board may suspend or revoke it upon a 
finding that the person misrepresented material facts in the application. The board is 
required to implement these provisions through major substantive rules. A hiring agent 
that uses coercion or intimidation or deceit to encourage persons who would otherwise be 
deemed employees to apply for certificates are subject to penalties, including penalties 
for a willful violation of the Act, fraud or intentional misrepresentation . 
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