AN ACT TO ENACT THE EMPLOYEE FAIR CLASSIFICATION ACT, TO REQUIRE THE INDUSTRIAL COMMISSION TO IMPLEMENT RULES RELATED TO OPIOIDS AND PAIN MANAGEMENT, TO REMOVE THE REQUIREMENT THAT THE INDUSTRIAL COMMISSION STUDY CAUSES OF INJURY AND RECOMMEND WAYS TO PREVENT INJURIES, AND TO DELAY THE EFFECTIVE DATE FOR A REQUIREMENT THAT EMPLOYERS RESPOND TO UNEMPLOYMENT INSURANCE CLAIMS IN TEN DAYS. Enacted August 11, 2017. Sections 1 through 3 are effective December 31, 2017. The remainder is effective August 11, 2017.
Bill Summaries: S407 EMPLOYEE MISCLASSIFICATION/IC CHANGES (NEW).
Summary date: Aug 22 2017 - View Summary
Summary date: Aug 3 2017 - View Summary
Conference report makes the following changes to the 3rd edition.
Amends Section 3.2(b) of SL 2017-8, making Section 3.2 (which amended GS 96-15 to reduce the required time period for which any interested employer must be allowed to file its protest of the claim in order to have the claim referred to an adjudicator from 14 days from the mailing or delivery of the notice of the filing of the claim against the employer’s account to 10 days) effective on July 1, 2018, instead of October 1, 2017.
Makes Section 1 (enacting the Employee Fair Classification Act), Section 2 (amending GS 105-259), and Section 3 (amending GS 95-25.15) of the act effective December 31, 2017, instead of October 1, 2017.
Makes conforming changes to the act's long title.
House committee substitute makes the following changes to the 1st edition.
Amends the long and short titles.
Amends proposed GS 143-762 (Definitions; scope). Amends the definition ofemployee to include one defined as such by GS 96-1(b)(10) [was, GS 96-1(10)].
Modifies proposed changes to GS 95-25.15(c). Amends the required contents of the poster summarizing the major provisions of GS Chapter 95, Article 2A (Wage and Hour Act), regarding statutory references to which workers are defined and treated as employees, and where notice of employee misclassification may be reported.
Directs the Industrial Commission to adopt rules and guidelines for the utilization of opioids, related prescriptions, and pain management treatment.
Exempts the Industrial Commission from the fiscal note requirement of GS 150B-21.4 in developing and implementing the rules and guidelines for opioids, related prescriptions, and pain management treatment.
Repeals GS 97-81(c), which requires the Industrial Commission to make certain studies and recommendations to the General Assembly.
Amends GS 97-12 (Use of intoxicant or controlled substance; willful neglect; willful disobedience of statutory duty, safety regulation or rule). Amends the 10% reduction in workers' compensation for injuries caused by willful breach of employer-adopted rules and regulations to apply that reduction to reasonable rules and reasonable regulations, and to delete the current requirement that the rules and regulations be approved by the Industrial Commission.
Makes proposed GS Chapter 143, Article 82, and amendments to GS 105-259(b), GS 95-25.15(c), and GS 97-12 effective October 1, 2017. Makes amendment to GS 97-12 applicable to injuries or deaths occurring after that date. The remainder of the act is effective when it becomes law.
House amendment #1 makes the following changes to the 2nd edition.
Changes the act's long title.
Deletes the proposed changes to GS 97-12, amending the 10% reduction in workers' compensation for injuries caused by willful breach of employer-adopted rules and regulations to apply that reduction to reasonable rules and reasonable regulations, and eliminating the current requirement that the rules and regulations be approved by the Industrial Commission. Makes conforming changes.
Summary date: Mar 28 2017 - View Summary
Enacts new Article 82 in GS Chapter 143, Employer Fair Classification Act. Clarifies that nothing in new Article 82 is to be construed or intended to change the definition of employer or employee under any other provisions of law.
Establishes the Employee Classification Section within the Industrial Commission. Directs the Chairman of the Industrial Commission to appoint a director of the Employee Classification Section (Section) to serve at the Chairman's pleasure with the authority as the Chairman deems necessary to direct and oversee the Section in carrying out the purposes of new Article 82. Authorizes the Chairman to employ necessary clerical staff, investigators, and other staff within the Section. Directs the Office of the State Chief Information Officer to ensure that the Section is provided with all necessary access to the Government Data Analytics Center and all other information technology services. Directs the Secretary of Revenue, the Commissioner of Labor, the Chairman, and the Assistant Secretary of Commerce for the Division of Employment Security to each designate an employee of their respective agencies to serve as liaisons to the Section.
Details seven powers and duties of the Employee Classification Section, including (1) investigating reports of employee misclassification and coordinating with and assisting State agencies in recovering any back taxes, wages, benefits, penalties, or other monies owed as a result of an employer engaging in employee misclassification; (2) providing all relevant information pertaining to each instance of reported employee misclassification to the NC Department of Labor, the Division of Employment Security within the NC Department of Commerce, the NC Department of Revenue, and the NC Industrial Commission to facilitate investigation of potential violations of GS Chapters 95 (Department of Labor and Labor Regulations), 96 (Employment Security), 97 (Workers' Compensation Act), 105 (Taxation), or 143 (State Departments, Institutions, and Commissions); and (3) developing methods and strategies to educate employers, employees, and the public about proper classification of employees and the prevention of employee misclassification. Defines employee missclassification to mean avoiding tax liabilities and other obligations imposed by GS Chapters 95, 96, 97, 105, and 143 by misclassifying an employee as an independent contractor. Defines employee to mean any individual that is defined as an employee by either GS 95-25.2(4), GS 96-1(10), GS 97-2(2), or GS 105-163.1(4), and does not include an individual who is an independent contractor. Defines employer as any individual or entity that employs one or more employees as defined by GS 97-2(3). Defines employ as the term is defined in GS 95-25.2(3), and clarifies that an entity or individual is not an employer, for purposes of new Article 82, of an individual hired or otherwise engaged by or through the entity or individual's independent contractor. Additionally, requires the Section to create a publicly available notice that includes the definition of employee misclassification. Defines public notice statement to mean a notice as set forth in GS 143-764(a)(5).
Directs the Section to annually publish a report of the administration of new Article 82 and any recommendations by October 1 of each year to the Office of the Governor and to the Joint Legislative Commission on Governmental Operations. Requires the report to include the number of reports of employee misclassification received; the number and amount of back taxes, wages, benefits, penalties, or other monies collected; and the number of cases referred to each State agency. Authorizes the Section to adopt rules in accordance with Article 2A of GS Chapter 150B (APA) for the purpose of carrying out the provisions of new Article 82 and establishing the processes and procedures to be used under the new Article.
Details the responsibilities of occupational licensing boards and commissions to certify that applicants have read and understood the employee misclassification notice set out in GS 143-764(a)(5), as enacted, and that applicants have disclosed any investigations for employee misclassification and the result of the investigations for a time period determined by the occupational licensing board or commission. Requires an occupational licensing board or commission to deny the license, permit, or certification application of any applicant that fails to comply with the certification and disclosure requirements of the statute.
Establishes that the records of the Employee Classification Section are not public records. Requires the Section to exchange information as required by new Article 82, and authorizes the Section to share information with other State and federal agencies as permitted or required by law.
Requires the NC Department of Revenue, the NC Department of Labor, the Division of Employment Security within the NC Department of Commerce, and the NC Industrial Commission to disclose all reports and investigations of employee misclassification to the Employee Classification Section. Directs the Section to distribute the information to the other agencies to allow each agency to conduct an investigation.
Amends GS 105-259(b) to add new subsection (49) to allow the disclosure of tax information for the purpose of furnishing the NC Department of Labor, the Division of Employment Security within the NC Department of Commerce, the NC Industrial Commission, and the Employee Classification Section with employee misclassification information pursuant to new Article 82 of GS Chapter 143 as enacted.
Amends GS 95-25.15(c), which requires a poster summarizing the major provisions of Article 2A of GS Chapter 95 to be displayed in every establishment subject to Article 2A (Wage and Hour Act), to additionally require the poster to include notice of the following in plain language: (1) any worker who is defined as an employee by either GS 95-25.2(4), GS 143-761(2), GS 96-1(10), GS 97-2(2), or GS 105-163.1(4) must be treated as an employee unless the individual is an independent contractor; (2) any employee who believes that the employee has been misclassified as an independent contractor by the employee's employer can report the suspected misclassification to the Employee Classification Section within the Industrial Commission; and (3) the physical location, mailing address, telephone number, and email address where alleged incidents of employee misclassification can be reported to the Employee Classification Section.
Effective October 1, 2017.