ABC New Hampshire & Vermont News

NH Legislature Creates New Criteria for Exempting Workers from Employee Status

The effort to clarify and improve the equitable and reasonable enforcement of regulations relative to the misclassification of employees as independent contractors continues with task groups and study committees. However, the 2011 NH legislature did debate and the Senate and House have concurred on the passage of legislation relative to the definition of employee and clarifying the criteria for exempting workers from employee status. The new definition impacts the statutes covering procurement of employment and payment of wages (RSA 275), minimum wages (RSA 279), whistleblower protection (RSA 275) and workers compensation (RSA 281). The new definition will go into effect 60 days after the bill is signed by the Governor. The new definition reduces the criteria required to be an independent contractor from 12 to 7. Below is the new definition.

(a) The person possesses or has applied for a federal employer identification number or social security number, or in the alternative, has agreed in writing to carry out the responsibilities imposed on employers under this chapter.

(b) The person has control and discretion over the means and manner of performance of the work, in that the result of the work, rather than the means or manner by which the work is performed, is the primary element bargained for by the employer.

(c) The person has control over the time when the work is performed, and the time of performance is not dictated by the employer. However, this shall not prohibit the employer from reaching an agreement with the person as to completion schedule, range of work hours, and maximum number of work hours to be provided by the person, and in the case of entertainment, the time such entertainment is to be presented.

(d) The person hires and pays the person's assistants, if any, and to the extent such assistants are employees, supervises the details of the assistants' work.

e) The person holds himself or herself out to be in business for himself or herself or is registered with the state as a businessand the person has continuing or recurring business liabilities or obligations.

[(f) The person has continuing or recurring business liabilities or obligations.

(g) The success or failure of the person's business depends on the relationship of business receipts to expenditures.

(h) The person receives compensation for work or services performed and remuneration is not determined unilaterally by the hiring party.

(i) The person is responsible in the first instance for the main expenses related to the service or work performed. However, this shall not prohibit the employer or person offering work from providing the supplies or materials necessary to perform the work.

(j)] (f) The person is responsible for satisfactory completion of work and may be held contractually responsible for failure to complete the work.

[(k) The person supplies the principal tools and instrumentalities used in the work, except that the employer may furnish tools or instrumentalities that are unique to the employer's special requirements or are located on the employer's premises.

(l)] (g) The person is not required to work exclusively for the employer.


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