Minnesota Session Laws - 2009, Regular Session

CHAPTER 89--S.F.No. 910

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 new text begin , section 176.043, new text end 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.

new text begin [176.043] TRUCKING AND MESSENGER/COURIER INDUSTRIES; INDEPENDENT CONTRACTORS. new text end

new text begin 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: new text end

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

new text begin (2) the individual is responsible for the maintenance of the equipment; new text end

new text begin (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; new text end

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

new text begin (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; new text end

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

new text begin (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. new text end

Sec. 3.

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

Subd. 25b.

Trucking deleted text begin industry/independent deleted text end new text begin and messenger/courier industries; independent new text end contractors.

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

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

(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; deleted text begin and deleted text end

(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 new text begin ; and new text end

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

Sec. 4.

new text begin REPEALER. new text end

new text begin Minnesota Rules, parts 5224.0290; 5224.0291; and 5224.0292, new text end new text begin are repealed. new text end

Presented to the governor May 13, 2009

Signed by the governor May 16, 2009, 1:43 p.m.