An Act To Standardize the Definition of "Independent Contractor
Maine Legislature, Session 125, LD 1314
Committee: Labor, Commerce, Research and Economic Development
Sponsors: TILTON, THOMAS, PLOWMAN, CRAY, FITTS, GIFFORD, PARRY
Amends: 1 MRSA §1012, 5 MRSA §19, 26 MRSA §1043, 39-A MRSA §102, 39-A MRSA §401

Legislative Document 
No. 1314 
H.P. 960 
House of Representatives, March 28, 2011 
An Act To Standardize the Definition of "Independent Contractor" 
Reference to the Committee on Labor, Commerce, Research and Economic Development 
suggested and ordered printed. 
HEATHER J.R. PRIEST 
Clerk 
Presented by Representative TILTON of Harrington. 
Cosponsored by Senator THOMAS of Somerset, Senator PLOWMAN of Penobscot and 
Representatives: CRAY of Palmyra, FITTS of Pittsfield, GIFFORD of Lincoln, McFADDEN 
of Dennysville, PARRY of Arundel. 
Be it enacted by the People of the State of Maine as follows: 
Sec. 1.  1 MRSA §1012, sub-§9, as amended by PL 1991, c. 885, Pt. E, §1 and 
affected by §47, is further amended to read: 
9.  Self-employed.  "Self-employed" means that the person qualifies as an 
independent contractor under Title 39-A, section 102, subsection 13 13-A. 
Sec. 2.  5 MRSA §19, sub-§1, ¶J, as amended by PL 1991, c. 885, Pt. E, §6 and 
affected by §47, is further amended to read: 
J.  "Self-employed" means that the person qualifies as an independent contractor 
under Title 39-A, section 102, subsection 13 13-A. 
Sec. 3.  26 MRSA §1043, sub-§11, ¶E, as amended by PL 1979, c. 651, §45, is 
repealed and the following enacted in its place: 
E.    Services performed by an individual for remuneration are considered to be 
employment subject to this chapter unless and until it is shown to the satisfaction of 
the bureau that the individual is an independent contractor who: 
(1)  Performs services free from direction and control over the means and manner 
of providing the services, subject only to the right of the person or entity for 
whom services are provided to specify the desired result; 
(2)  Furnishes the tools and equipment necessary to provide the services; 
(3)  Operates a business that is considered inseparable from the individual for 
purposes of taxes, profits and liabilities; 
(4)  Exercises complete control over the management and operations of the 
business; and 
(5)  Exercises the right and opportunity on a continuing basis to perform the 
services of the business for multiple entities at the individual's sole choice and 
discretion. 
An individual who is an independent contractor under this paragraph is an 
independent contractor until that individual is determined otherwise by the bureau. 
Sec. 4.  39-A MRSA §102, sub-§13, as amended by PL 2009, c. 452, §4, is 
repealed. 
Sec. 5.  39-A MRSA §102, sub-§13-A is enacted to read: 
13-A.  Independent contractor.  Except as otherwise provided by section 105-A, 
"independent contractor" means a person who: 
A.  Performs services free from direction and control over the means and manner of 
providing the services, subject only to the right of the person or entity for whom 
services are provided to specify the desired result; 
B.  Furnishes the tools and equipment necessary to provide the services under 
paragraph A; 
C.  Operates a business that is considered inseparable from the individual for 
purposes of taxes, profits and liabilities; 
D.  Exercises complete control over the management and operations of the business; 
and 
E.  Exercises the right and opportunity on a continuing basis to perform the services 
of the business for multiple entities at the individual's sole choice and discretion. 
An individual who is an independent contractor under this subsection is an independent 
contractor until that individual is determined otherwise by the board. 
Sec. 6.  39-A MRSA §401, sub-§4, as amended by PL 1999, c. 364, §6, is further 
amended to read: 
4.  Liability of landowner.  A landowner subject to this Act who contracts to have 
wood harvested from the landowner's property by a contractor who, as an employer, is 
subject to this Act and who has not complied with the provisions of this section and who 
does not comply with the provisions of this section prior to the date of an injury or death 
for which a claim is made is liable to pay to any person employed by the contractor in the 
execution of the work any compensation under this Act that the landowner would have 
been liable to pay if that person had been immediately employed by the landowner. 
A landowner is not liable for compensation if at the time the landowner enters into the 
contract with the contractor, the landowner applies for and receives a predetermination of 
the independent status of the contractor as set forth in section 105, the landowner requests 
and receives a certificate of independent status, issued by the board on an annual basis to 
a contractor, certifying that the contractor harvests forest products in a manner that would 
not make the contractor an employee of the landowner or the landowner requests and 
receives a certificate of insurance, issued by the contractor's insurance carrier, certifying 
that the contractor has obtained the required coverage and indicating the effective dates of 
the policy, and if the landowner requests and receives at least annually similar certificates 
indicating continuing coverage during the performance of the work.  A landowner who 
receives a predetermination of the contractor's status as independent contractor or a 
certificate of independent status is only relieved of liability under this paragraph if the 
contract for wood harvesting expressly states that the independent contractor will not hire 
any employees to assist in the wood harvesting without first providing the required 
certificate of insurance to the landowner. 
Notwithstanding section 105, subsection 1, paragraph A, a predetermination under 
section 105 related only to a person engaged in harvesting forest products is a conclusive 
presumption that the determination is correct and section 105, subsection 2 does not apply 
to that determination.  Each party involved in or affected by the predetermination must be 
provided information on the workers' compensation laws and the effect of independent 
contractor status in relation to those laws.  A predetermination under section 105 related 
to a person engaged in harvesting forest products is effective for one calendar year or the 
duration of the contract, whichever is shorter. 
A landowner required to pay compensation under this section is entitled to be 
indemnified by the contractor and may recover the amount paid in an action against that 
contractor.  A landowner may demand that the contractor enter into a written agreement 
to reimburse the landowner for any loss incurred under this section due to a claim filed 
for compensation and other benefits.  The employee is not entitled to recover at common 
law against the landowner for any damages arising from such injury if the employee takes 
compensation from that landowner. 
Landowners willfully acting to circumvent the provisions of this section by using 
coercion, intimidation, deceit or other means to encourage persons who would otherwise 
be considered employees within the meaning of this Act to pose as contractors for the 
purpose of evading this section are liable subject to the provisions of section 324, 
subsection 3.  Nothing in this section may be construed to prohibit an employee from 
becoming a contractor subject to the provisions of section 102, subsection 13 13-A. 
SUMMARY 
This bill standardizes the definition of "independent contractor" for employment 
security law and workers' compensation law.  It considers who directs or controls the 
means and manner of providing the contracted services; who furnishes the tools and 
equipment necessary to provide the services; whether the business is considered 
inseparable from the individual for purposes of taxes, profits and liabilities; who 
exercises control over the management and operations of the business; and who exercises 
the right and opportunity to perform the services of the business for multiple entities.