An Act To Ensure That Construction Workers Are Protected by Workers' Compensation Insurance Reference to the COImnittee on Labor suggested and ordered printed.
Maine Legislature, Session 124, LD 1456
Sponsors: MARTIN, CUSHING, JACKSON, PINGREE, MILLS, SIMPSON
Amends: 39-A MRSA §102, 39-A MRSA §10

FIRST F..EGULAR SESSION-2009 
Legislative Document 
No. 1456 
H.P: 1008 
House of Representatives, April 9, 2009 
An Act To Ensure That Construction Workers Are Protected by 
Workers' Compensation Insurance 
Reference to the COImnittee on Labor suggested and ordered printed. 
Presented by Representative MARTIN of Eagle Lake. 
71/!v~ 1n.1ll1lC~{ 
MILLICENT M. MacFARLAND 
Clerk 
Cosponsored by Representative CUSHING of Hampden, Senator JACKSON of Aroostook and 
Representative: Speaker PINGREE of North Haven, Senators: MILLS of Somerset, SIMPSON 
of Androscoggin. 
PrilHt:U ,'11 1'L'~ych.'d pap!!!' 
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Be it enacted by the People of the State of Maine as follows: 
Sec. 1. 39-A MRSA §102, sub-§l1, 9lA, as amended by PL 2007, c. 350, §1, 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 
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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: 
(1) 
Persons engaged in maritime 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; 
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(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 proyided 
Page J - 124LR1131(OI)-1 
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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 s'ubparagraph, 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, domestic 
partner as defined in Title 24, section 2319-A, subsection 1 or child of a person 
who has made a waiver urider the previous sentence may state, in writing, that the 
parent, spouse, domestic partner as defined in Title 24, section 2319-A, 
subsection' 1 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, domestic partner as defined in 
Title 24, section 2319-A, subsection 1 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, domestic partner as defined in Title 24, ~ection 2319-A, subsection 1 or 
child of a sole proprietor who is employed by that sole proprietor or the parent, 
spouse, domestic partner as defined in Title 24, section 2319-A, subsection 1 or 
child of a partner who is employed by the partnership of that partner or the 
parent,' spouse, domestic partner as defined in Title 24, section 2319-A, 
subsection 1 or child ofa member of a limited liability company who is 
employed by that limited liability company may state, in writing, that the parent, 
spouse, domestic partner as defined in Title 24, section 2319-A, subsection 1 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 sections 105-A and 401, 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 
subpar?graph; 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 
affected by §§9 to 11, is amended to read: 
13. Independent contractor. "Independent Except as otherwise provided by section 
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105-A, "independent contractor" means a person who perfom1s 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: 
lOA. 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 fmal results; 
E. Whether or not the work is part of the regular business of the employer; 
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. 
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Sec. 3. 39-A MRSA §10S-A is enacted to read: 
§105-A. Construction contractors 
1. Definitions: As used in this section, unless the context otherwise indicates, the 
following terms have the following meanings. 
36. 
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A. "Construction site" means a location where a structure that is attached or will be 
attached to real property is constructed, altered or remodeled. 
B. -"Construction subcontractor" means a person who performs construction work on 
a' construction site for a hiring agent if the person satisfies all of the following 
criteria: 
(1) The person possesses or has applied for a federal employer identification 
number or social -security number or has· agreed in writing to carry out the 
responsibilities imposed on employers under this chapter; 
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(2) 
The person has control and discretion over the means and" manner of 
perfonnance of the construction work, in that the result of the work, rather than 
the means or manner by which the work is perfonned, is the primary element 
bargaincd for by the hinng agent; 
(3) - The persoll hascontr61 over the time when the work is perfonned and the 
lime of perfonnance is not dictated by the hiring ageiIt. 
Nothing in this 
paragraph prohibits the hiring agent from reaching an agreement with the person 
as to a completion schedule, range of work hours and maximum number of work 
hours to be provided by the person;" 
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(4) The person hires and pays. the person's assista~ts, if any, and, to the extent 
such assistants are employees, supervises the details of the assistants' work; 
(5) The person purports to be in business for that person's self; 
(6) The person has continuing or recurring construction business liabilities or 
obligations; 
(7) The success or failure of the person's construction business depends on the 
relationship of business receipts to expenditures; 
(8) 
The person receives compensation for construction work or services 
perfonned and remuneration is not detennined unilaterally by the hiring agent; 
(9) The person is responsible in the first instance for the main expenses related to 
the service or construction work perfonned; however, nothing in this paragraph 
prohibits the hiring agent from providing the supplies or materials necessary to 
perfonn the work; 
(10) The person is responsible for satisfactory completion of the work and may 
be held contractually responsible for failure to complete the work; 
"(II) The person supplies the principal tools and instruments used in the" work, 
except that the hiring agent may furnish tools or instruments that are unique to 
the hiring' agent's special requirements or are located on the hiring agent's 
premises; and 
(12) The person is not required to work exclusively for the hiring agent. 
C. "Construction work" means any part of the construction, alteration or remodeling 
of a structure, including related landscaping and other site work perfonned" in 
connection with the perfonnance of such work, but not including surveying, 
engineering, examination or inspection of a construction site or the delivery of 
materials to a construction site. 
D. "Hiring agent" means a person that hires or contracts with a person to perfonn 
construction work, but excludes an owner or occupant of real property who hires a 
person or persons to perfonn construction work on that real property. 
E. "Person" means: 
(1) An individual; 
(2) A sole proprietor; 
(3) A worldng member of a partnership; 
(4) A working member of a limited liability company; 
(5) A parent, spouse or child of a sole proprietor, partner or working member of 
. a limited liability company under section 1 02, subsection 11 , paragraph A; 
(6) A working owner or part owner of a corporation; and 
(7) A working shareholder of a professional corporation. 
2. Status of persons performing construction worl{. Beginning January 1, 2010, a 
person performing construction work on a construction site for a hiring agent is presumed 
to be the employee of the hiring agent for purposes of this Act, unless: 
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A. The person is a construction subcontractor; or 
B. The person has secured the payment of compensation under sections 401 to 407. 
For purposes of this paragraph, a person who has waived coverage on the person as a 
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bona fide owner of at least 20% of the outstanding voting stock of the corporation 
that employs the person in accordance with section 102, subsection 11, paragraph A 
has secured the payment of compensation under sections 401 to 407 if the corporation 
that employs the person has secured the payment of compensation with respect to any 
other employees it has. 
3. 
Penalties.' A person who is required' to but fails to secure the payment of 
compensation with respect to persons deemed to be that person's employees under this 
section is subject to the penalties under section 324, subsection 3. 
4. Insurer referral obligation. An insurer that believes in good faith that an insured 
employer withheld from it or from the State Tax Assessor records of payments to a 
person deemed to be the person's employee under this section shall refer the msurer and 
person to the State Tax Assessor-inorder that the assessor may take appropriate action, 
and the insurer enjoys immunity for such actions. 
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SUMMARY 
This bill provides that, beginning January 1, 2010, a person performing construction 
work on a construction site for a hiring agent presumed to be an er~lployee of the hiring 
agent for purposes of workers' compensation, unless the person either meets the definition 
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of "construction subcontractor" or carries workers' compensation insurance. 
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