Bill Text: DE HB221 | 2011-2012 | 146th General Assembly | Draft
Bill Title: An Act To Amend Title 19 Of The Delaware Code Relating To The Workplace Fraud Act.
Spectrum: Partisan Bill (Democrat 5-0)
Status: (Introduced - Dead) 2011-06-30 - Re-Assigned to House Administration Committee in House [HB221 Detail]
Download: Delaware-2011-HB221-Draft.html
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SPONSOR: |
Rep. J. Johnson & Rep. Jaques & Rep. Kowalko & Rep. Osienski & Sen. Henry |
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HOUSE OF REPRESENTATIVES 146th GENERAL ASSEMBLY |
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HOUSE BILL NO. 221 |
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AN ACT TO AMEND TITLE 19 OF THE DELAWARE CODE RELATING TO THE WORKPLACE FRAUD ACT. |
Section 1.Amend §3501, Title 19 of the Delaware Code by striking §3501(a)(1) in its entirety and renumbering the remaining paragraphs accordingly.
Section 2.Amend newly renumbered §3501(a)(1) by striking the word "construction" as it appears therein.
Section 3. Amend newly renumbered §3501(a)(3) by striking the phrase "person or entity" and replacing it with "individual or entity or an employee of such entity".
Section 4.Amend newly renumbered §3501(a)(4), Title 19 of the Delaware Code by striking that paragraph in its entirety and replacing with the following:
"(4) ‘Employer' shall have the meaning assigned in §101(a)(3) of this title."
Section 5. Amend newly renumbered §3501(a)(7), Title 19 of the Delaware Code by adding the words "or constructive" between "actual" and "knowledge as they appear therein, and by adding the following sentence at the end of that paragraph: "Deliberate ignorance or reckless disregard shall include contracting with another entity to perform work within the employer's usual type of business without making a due diligence inquiry of the entity's compliance with this chapter."
Section 6. Amend §3501(b), Title 19 of the Delaware Code by striking that subsection in its entirety and replacing with the following:
"(b) Controlling individuals including owners, officers, managers, partners and chief operating officers of artificial business entities such as corporations, limited liability companies, general and limited partnerships, and sole proprietorships, shall be jointly and severally liable along with the business entity for knowing violations of this chapter.".
Section 7.Amend §3502, Title 19 of the Delaware Code by striking the words "only to the construction services industry" and replacing with "to all Employers within the State".
Section 8.Amend §3503, Title 19 of the Delaware Code, by striking that section in its entirety and replacing with the following:
"§ 3503. Acts prohibited.
(a) An Employer shall not improperly classify an Employee who performs work for remuneration provided by an Employer as an independent contractor.
(b) An Employer has improperly classified an Employee when an employer-employee relationship exists, as determined in subsection (c) of this section, and the Employer has not classified the Employee performing the work as an employee.
(c) An "employer-employee" relationship shall be presumed to exist when work is performed by an Employee for remuneration paid by an Employer, unless to the satisfaction of the Department the Employer demonstrates that the Employee is an exempt person or independent contractor.
(d) A person or entity shall not knowingly incorporate or form, or assist in the incorporation or formation of, a corporation, partnership, limited liability corporation, or other entity, or pay or collect a fee for use of a foreign or domestic corporation, partnership, limited liability corporation, or other entity for the purpose of facilitating, or evading detection of, a violation of this chapter.
(e) A person or an entity shall not knowingly conspire with, aid and abet, assist, advise, or facilitate an employer with the intent of violating the provisions of this chapter.
(f) An Employer shall not knowingly subcontract with an individual or another entity that improperly classifies the subcontractor's employees as independent contractors.
(g) The Department shall adopt regulations to further explain and provide specific examples of subsections (c), (d), and (e) of this section.".
Section 9.Amend §3504(c) by striking paragraphs (2) and (3) in their entirety and replacing with the following:
"(2) Question an Employer, Employee, or other person in or on the premises, place of business or place of employment, or work site;
(3) Require from any Employer full and correct statements in writing, including sworn statements, upon forms prescribed or approved by the Department, with respect to the payment of wages, hours, names, addresses, and such other information pertaining to remuneration pertaining to Employees, or require from any Employer complete and accurate copies of written notices pertaining to independent contractors, which are maintained by the Employer pursuant to § 3511(c) of this title;"
Section 10.Amend §3504, Title 19 of the Delaware Code by striking subsection (d) in its entirety and replacing with the following:
"(d) Following an investigation in which the Department makes an initial determination that an Employer has violated 1 or more of the provisions of this chapter or any regulation published hereunder, the Department shall notify the employer of such initial determination by certified mail and shall provide the Employer with an opportunity to submit a written appeal to the Secretary of Labor within 20 days from the receipt of the Department's initial determination.The Secretary of Labor shall set a briefing schedule for the appeal.The Secretary of Labor may conduct or hold a hearing after briefing has been completed. The Secretary of Labor's determination shall be the final agency determination.Any party to that final determination may file an administrative appeal to the Superior Court pursuant to the Administrative Procedures Act [Chapter 101 of Title 29].If no appeal is timely filed to the Secretary of Labor, the initial determination shall become the final decision and no further appeal process shall be permitted.The Department may institute actions in any court of competent jurisdiction to enforce the provisions of this chapter and to obtain a judgment for penalties for any violation of this chapter or any regulation published thereunder.".
Section 11.Amend §3505, Title 19 of the Delaware Code by striking "employee" each time it appears therein and replacing with "Employee", and by striking "employer" each time it appears therein and replacing with "Employer".
Section 12.Amend §3505(b), Title 19 of the Delaware Code by inserting the words "or injunctive" between "stop work" and "order" as they appear therein.
Section 13.Amend §3505(d) by inserting the phrase "or entity" between "A person" and "who knowingly" as those phrases appear in the first sentence thereof.
Section 14.Amend §3508(a), Title 19 of the Delaware Code by striking the phrase "within 90 days" and replacing it with "within 180 days".
SYNOPSIS
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This Act makes a number of technical corrections to the Workplace Fraud Act passed by the 145th General Assembly. It makes the Act applicable to all employees, except those in domestic, agriculture, fishing, and hunting.It requires employers not to subcontract work to entities known to violate this Act.Finally, it expands and details the appeal process for violation of the Act. |
