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SF 910

3rd Engrossment - 86th Legislature (2009 - 2010) Posted on 02/09/2010 02:17am

KEY: stricken = removed, old language.
underscored = added, new language.

Current Version - 3rd Engrossment

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A bill for an act
relating to employment; regulating the employment status of certain truckers
for the purpose of unemployment compensation and workers' compensation;
amending Minnesota Statutes 2008, sections 176.041, subdivision 1; 268.035,
subdivision 25b; proposing coding for new law in Minnesota Statutes, chapter
176; repealing Minnesota Rules, parts 5224.0290; 5224.0291; 5224.0292.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

Section 1.

Minnesota Statutes 2008, section 176.041, subdivision 1, is amended to read:


Subdivision 1.

Employments excluded.

This chapter does not apply to any of
the following:

(1) a person employed by a common carrier by railroad engaged in interstate or
foreign commerce and who is covered by the Federal Employers' Liability Act, United
States Code, title 45, sections 51 to 60, or other comparable federal law;

(2) a person employed by a family farm as defined by section 176.011, subdivision
11a
;

(3) the spouse, parent, and child, regardless of age, of a farmer-employer working
for the farmer-employer;

(4) a sole proprietor, or the spouse, parent, and child, regardless of age, of a sole
proprietor;

(5) a partner engaged in a farm operation or a partner engaged in a business and the
spouse, parent, and child, regardless of age, of a partner in the farm operation or business;

(6) an executive officer of a family farm corporation;

(7) an executive officer of a closely held corporation having less than 22,880 hours
of payroll in the preceding calendar year, if that executive officer owns at least 25 percent
of the stock of the corporation;

(8) a spouse, parent, or child, regardless of age, of an executive officer of a family
farm corporation as defined in section 500.24, subdivision 2, and employed by that
family farm corporation;

(9) a spouse, parent, or child, regardless of age, of an executive officer of a closely
held corporation who is referred to in clause (7);

(10) another farmer or a member of the other farmer's family exchanging work with
the farmer-employer or family farm corporation operator in the same community;

(11) a person whose employment at the time of the injury is casual and not in the
usual course of the trade, business, profession, or occupation of the employer;

(12) persons who are independent contractors as defined by section 181.723, section
176.043,
and any rules adopted by the commissioner pursuant to section 176.83 except
that these exclusions do not apply to an employee of an independent contractor;

(13) an officer or a member of a veterans' organization whose employment
relationship arises solely by virtue of attending meetings or conventions of the veterans'
organization, unless the veterans' organization elects by resolution to provide coverage
under this chapter for the officer or member;

(14) a person employed as a household worker in, for, or about a private home
or household who earns less than $1,000 in cash in a three-month period from a single
private home or household provided that a household worker who has earned $1,000 or
more from the household worker's present employer in a three-month period within the
previous year is covered by this chapter regardless of whether or not the household worker
has earned $1,000 in the present quarter;

(15) persons employed by a closely held corporation who are related by blood or
marriage, within the third degree of kindred according to the rules of civil law, to an
officer of the corporation, who is referred to in clause (7), if the corporation files a written
election with the commissioner to exclude such individuals. A written election is not
required for a person who is otherwise excluded from this chapter by this section;

(16) a nonprofit association which does not pay more than $1,000 in salary or wages
in a year;

(17) persons covered under the Domestic Volunteer Service Act of 1973, as
amended, United States Code, title 42, sections 5011, et seq.;

(18) a manager of a limited liability company having ten or fewer members and
having less than 22,880 hours of payroll in the preceding calendar year, if that manager
owns at least a 25 percent membership interest in the limited liability company;

(19) a spouse, parent, or child, regardless of age, of a manager of a limited liability
company described in clause (18);

(20) persons employed by a limited liability company having ten or fewer members
and having less than 22,880 hours of payroll in the preceding calendar year who are related
by blood or marriage, within the third degree of kindred according to the rules of civil law,
to a manager of a limited liability company described in clause (18), if the company files a
written election with the commissioner to exclude these persons. A written election is not
required for a person who is otherwise excluded from this chapter by this section; or

(21) members of limited liability companies who satisfy the requirements of clause
(12).

Sec. 2.

[176.043] TRUCKING AND MESSENGER/COURIER INDUSTRIES;
INDEPENDENT CONTRACTORS.

In the trucking and messenger/courier industries, an operator of a car, van, truck,
tractor, or truck-tractor that is licensed and registered by a governmental motor vehicle
agency is an employee unless each of the following factors is present, and if each factor is
present, the operator is an independent contractor:

(1) the individual owns the equipment or holds it under a bona fide lease arrangement;

(2) the individual is responsible for the maintenance of the equipment;

(3) the individual is responsible for the operating costs, including fuel, repairs,
supplies, vehicle insurance, and personal expenses. The individual may be paid the
carrier's fuel surcharge and incidental costs, including, but not limited to, tolls, permits,
and lumper fees;

(4) the individual is responsible for supplying the necessary personal services
to operate the equipment;

(5) the individual's compensation is based on factors related to the work performed,
such as a percentage of any schedule of rates, and not on the basis of the hours or time
expended;

(6) the individual substantially controls the means and manner of performing the
services, in conformance with regulatory requirements and specifications of the shipper;
and

(7) the individual enters into a written contract that specifies the relationship to be
that of an independent contractor and not that of an employee.

Sec. 3.

Minnesota Statutes 2008, section 268.035, subdivision 25b, is amended to read:


Subd. 25b.

Trucking industry/independent and messenger/courier industries;
independent
contractors.

In the trucking industry and messenger/courier industries,
an owner-operator operator of a vehicle car, van, truck, tractor, or truck-tractor that is
licensed and registered as a truck, tractor, or truck-tractor by a governmental motor vehicle
regulatory agency is an independent contractor, and is not considered an employee, while
performing services in the operation of the truck only if
employee unless each of the
following factors is present, and if each factor is present, the operator is an independent
contractor
:

(1) the individual owns the equipment or holds it under a bona fide lease arrangement;

(2) the individual is responsible for the maintenance of the equipment;

(3) the individual bears the principal burdens of is responsible for the operating
costs, including fuel, repairs, supplies, vehicle insurance, and personal expenses while
on the road
. The individual may be paid the carrier's fuel surcharge and incidental costs,
including, but not limited to, tolls, permits, and lumper fees
;

(4) the individual is responsible for supplying the necessary personal services
to operate the equipment;

(5) the individual's compensation is based on factors related to the work performed,
such as a percentage of any schedule of rates, and not on the basis of the hours or time
expended; and

(6) the individual enters into a written contract that specifies the relationship to be
that of an independent contractor and not that of an employee; and

(7) the individual substantially controls the means and manner of performing the
services, in conformance with regulatory requirements and specifications of the shipper
.

Sec. 4. REPEALER.

Minnesota Rules, parts 5224.0290; 5224.0291; and 5224.0292, are repealed.