Bill Text: MI SB1012 | 2011-2012 | 96th Legislature | Introduced

---

Bill Title: Worker's compensation; benefits; criteria to determine employee and independent contractor status for worker's compensation coverage in trucking and messenger courier industries; establish. Amends sec. 161 of 1969 PA 317 (MCL 418.161).

Spectrum: Partisan Bill (Republican 4-0)

Status: (Introduced - Dead) 2012-03-08 - Referred To Committee On Economic Development [SB1012 Detail]

Download: Michigan-2011-SB1012-Introduced.html

---

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

SENATE BILL No. 1012

 

 

March 8, 2012, Introduced by Senators MARLEAU, KOWALL, ROBERTSON and BRANDENBURG and referred to the Committee on Economic Development.

 

 

 

     A bill to amend 1969 PA 317, entitled

 

"Worker's disability compensation act of 1969,"

 

by amending section 161 (MCL 418.161), as amended by 2011 PA 266.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

     Sec. 161. (1) As used in this act, "employee" means:

 

     (a) A person in the service of the this state, a county, city,

 

township, village, or school district, under any appointment, or

 

contract of hire, express or implied, oral or written. A person

 

employed by a contractor who has contracted with a county, city,

 

township, village, school district, or the state, through its

 

representatives, shall not be considered is not an employee of the

 

state, county, city, township, village, or school district that

 

made the contract, if the contractor is subject to this act.

 

     (b) Nationals of foreign countries employed pursuant to

 

section 102(a)(1) of the mutual educational and cultural exchange

 

act of 1961, Public Law 87-256, 22 USC 2452, shall not be

 

considered are not employees under this act.

 

     (c) Police officers, fire fighters, or employees of the police

 

or fire departments, or their dependents, in municipalities or

 

villages of this state providing like benefits, may waive the

 

provisions of this act and accept like benefits that are provided

 

by the municipality or village but are not entitled to like

 

benefits from both the municipality or village and this act;

 

however, this waiver does not prohibit those employees or their

 

dependents from being reimbursed under section 315 for the medical

 

expenses or portion of medical expenses that are not otherwise

 

provided for by the municipality or village. This act shall not be

 

construed as limiting, changing, or repealing does not limit,

 

change, or repeal any of the provisions of a charter of a

 

municipality or village of this state relating to benefits,

 

compensation, pensions, or retirement independent of this act,

 

provided for employees.

 

     (d) On-call members of a fire department of a county, city,

 

village, or township shall be considered to be employees of the

 

county, city, village, or township, and entitled to all the

 

benefits of this act if personally injured in the performance of

 

duties as on-call members of the fire department whether the on-

 

call member of the fire department is paid or unpaid. On-call

 

members of a fire department of a county, city, village, or

 

township shall be considered to be receiving the state average

 

weekly wage at the time of injury, as last determined under section

 

355, from the county, village, city, or township for the purpose of

 

calculating the weekly rate of compensation provided under this act

 

except that if the member's average weekly wage was greater than

 

the state average weekly wage at the time of the injury, the

 

member's weekly rate of compensation shall be determined based on

 

the member's average weekly wage.

 

     (e) On-call members of a fire department or an on-call member

 

of a volunteer underwater diving team that contracts with or

 

receives reimbursement from 1 or more counties, cities, villages,

 

or townships is entitled to all the benefits of this act if

 

personally injured in the performance of their duties as on-call

 

members of a fire department or as an on-call member of a volunteer

 

underwater diving team whether the on-call member of the fire

 

department or the on-call member of the volunteer underwater diving

 

team is paid or unpaid. On-call members of a fire department shall

 

be considered to be receiving the state average weekly wage at the

 

time of injury, as last determined under section 355, from the fire

 

department for the purpose of calculating the weekly rate of

 

compensation provided under this act except that if the member's

 

average weekly wage was greater than the state average weekly wage

 

at the time of the injury, the member's weekly rate of compensation

 

shall be determined based on the member's average weekly wage. On-

 

call members of a volunteer underwater diving team shall be

 

considered to be receiving the state average weekly wage at the

 

time of injury, as last determined under section 355, from the fire

 

department for the purpose of calculating the weekly rate of

 

compensation provided under this act except that if the member's

 

average weekly wage was greater than the state average weekly wage

 

at the time of the injury, the member's weekly rate of compensation

 

shall be determined based on the member's average weekly wage.

 

     (f) The benefits of this act are available to a safety patrol

 

officer who is engaged in traffic regulation and management for and

 

by authority of a county, city, village, or township, whether the

 

officer is paid or unpaid, in the same manner as benefits are

 

available to on-call members of a fire department under subdivision

 

(d), upon the adoption by the legislative body of the county, city,

 

village, or township of a resolution to that effect. A safety

 

patrol officer or safety patrol force when used in this act

 

includes all persons who volunteer and are registered with a school

 

and assigned to patrol a public thoroughfare used by students of a

 

school.

 

     (g) A volunteer civil defense worker who is a member of the

 

civil defense forces as provided by law and is registered on the

 

permanent roster of the civil defense organization of the state or

 

a political subdivision of the state shall be considered to be an

 

employee of the this state or the political subdivision on whose

 

permanent roster the employee is enrolled if engaged in the

 

performance of duty and shall be considered to be receiving the

 

state average weekly wage at the time of injury, as last determined

 

under section 355, from the this state or political subdivision for

 

purposes of calculating the weekly rate of compensation provided

 

under this act.

 

     (h) A volunteer licensed under section 20950 or 20952 of the

 

public health code, 1978 PA 368, MCL 333.20950 and 333.20952, who

 

is an on-call member of a life support agency as defined under

 

section 20906 of the public health code, 1978 PA 368, MCL

 

333.20906, shall be considered to be an employee of the county,

 

city, village, or township and entitled to the benefits of this act

 

if personally injured in the performance of duties as an on-call

 

member of a life support agency whether the on-call member of the

 

life support agency is paid or unpaid. An on-call member of a life

 

support agency shall be considered to be receiving the state

 

average weekly wage at the time of injury, as last determined under

 

section 355, from the county, city, village, or township for

 

purposes of calculating the weekly rate of compensation provided

 

under this act except that if the member's average weekly wage was

 

greater than the state average weekly wage at the time of the

 

injury, the member's weekly rate of compensation shall be

 

determined based on the member's average weekly wage.

 

     (i) A volunteer licensed under section 20950 or 20952 of the

 

public health code, 1978 PA 368, MCL 333.20950 and 333.20952, who

 

is an on-call member of a life support agency as defined under

 

section 20906 of the public health code, 1978 PA 368, MCL

 

333.20906, that contracts with or receives reimbursement from 1 or

 

more counties, cities, villages, or townships is entitled to all

 

the benefits of this act if personally injured in the performance

 

of his or her duties as an on-call member of a life support agency

 

whether the on-call member of the life support agency is paid or

 

unpaid. An on-call member of a life support agency shall be

 

considered to be receiving the state average weekly wage at the

 

time of injury, as last determined under section 355, from the life

 

support agency for the purpose of calculating the weekly rate of

 

compensation provided under this act except that if the member's

 

average weekly wage was greater than the state average weekly wage

 

at the time of the injury, the member's weekly rate of compensation

 

shall be determined based on the member's average weekly wage.

 

     (j) If a member of an organization recognized by 1 or more

 

counties, cities, villages, or townships within this state as an

 

emergency rescue team is employed by a state, county, city,

 

village, or township within this state as a police officer, fire

 

fighter, emergency medical technician, or ambulance driver and is

 

injured in the normal scope of duties including training, but

 

excluding activation, as a member of the emergency rescue team, he

 

or she shall be considered to be engaged in the performance of his

 

or her normal duties for the state, county, city, village, or

 

township. If the member of the emergency rescue team is not

 

employed by a state, county, city, village, or township within this

 

state as a police officer, fire fighter, emergency medical

 

technician, or ambulance driver, and is injured in the normal scope

 

of duties, including training, as a member of the emergency rescue

 

team, he or she shall be considered to be an employee of the team.

 

For the purpose of securing the payment of compensation under this

 

act, on activation, each member of the team shall be considered to

 

be covered by a policy obtained by the team unless the employer of

 

a member of the team agrees in writing to provide coverage for that

 

member under its policy. Members of an emergency rescue team shall

 

be considered to be receiving the state average weekly wage at the

 

time of injury, as last determined under section 355, from the team

 

for the purpose of calculating the weekly rate of compensation

 

provided under this act except that if the member's average weekly

 

wage was greater than the state average weekly wage at the time of

 

the injury, the member's weekly rate of compensation shall be

 

determined based on the member's average weekly wage. As used in

 

this subdivision, "activation" means a request by the emergency

 

management coordinator appointed pursuant to section 8 or 9 of the

 

emergency management act, 1976 PA 390, MCL 30.408 and 30.409, made

 

of and accepted by an emergency rescue team.

 

     (k) A political subdivision of this state is not required to

 

provide compensation insurance for a peace officer of the political

 

subdivision with respect to the protection and compensation

 

provided by 1937 PA 329, MCL 419.101 to 419.104.

 

     (l) Every person in the service of another, under any contract

 

of hire, express or implied, including aliens; a person regularly

 

employed on a full-time basis by his or her spouse having specified

 

hours of employment at a specified rate of pay; working members of

 

partnerships receiving wages from the partnership irrespective of

 

profits; a person insured for whom and to the extent premiums are

 

paid based on wages, earnings, or profits; and minors, who shall be

 

considered the same as and have the same power to contract as adult

 

employees. Any minor under 18 years of age whose employment at the

 

time of injury is shown to be illegal, in the absence of fraudulent

 

use of permits or certificates of age in which case only single

 

compensation shall be paid, shall receive compensation double that

 

provided in this act.

 

     (m) Every person engaged in a federally funded training

 

program or work experience program that mandates the provision of

 

appropriate worker's compensation for participants and that is

 

sponsored by the this state, a county, city, township, village, or

 

school district, or an incorporated public board or public

 

commission in the this state authorized by law to hold property and

 

to sue or be sued generally, or any consortium thereof, shall be is

 

considered, for the purposes of this act, to be an employee of the

 

sponsor and entitled to the benefits of this act. The sponsor is

 

responsible for the provision of worker's compensation and shall

 

secure the payment of compensation by a method permitted under

 

section 611. If a sponsor contracts with a public or private

 

organization to operate a program, the sponsor may require the

 

organization to secure the payment of compensation by a method

 

permitted under section 611.

 

     (n) Every person performing service in the course of the

 

trade, business, profession, or occupation of an employer at the

 

time of the injury, if the person in relation to this service does

 

not maintain a separate separately registered business, does not

 

hold himself or herself out to and render service to the public,

 

and or is not an employer subject to this act. On and after January

 

1, 2013, services are employment if the services are performed by

 

an individual who is not in the trucking and messenger courier

 

industries and whom the Michigan administrative hearing system

 

determines to be in an employer-employee relationship using the 20-

 

factor test announced by the internal revenue service of the United

 

States department of treasury in revenue ruling 87-41, 1 C.B. 296.

 

An individual for whom an employer is required to withhold federal

 

income tax is prima facie considered to perform service in

 

employment under this act. If a business entity requests the

 

Michigan administrative hearing system to determine whether 1 or

 

more individuals performing service for the entity in this state

 

are in covered employment, the Michigan administrative hearing

 

system shall issue a determination of coverage of service performed

 

by those individuals and any other individuals performing similar

 

services under similar circumstances. In the trucking and messenger

 

courier industries, an individual who is not excluded under the

 

first sentence of this subdivision and is the operator of a vehicle

 

or vessel is an employee, unless all of the following apply:

 

     (i) The individual owns the vehicle or vessel or holds it under

 

a bona fide lease arrangement that is not through an arrangement,

 

loan, or loan guarantee with the contracting entity or any

 

affiliate of the contracting entity. This requirement does not

 

apply to temporary replacement lease agreements.

 

     (ii) The individual is responsible for substantially all of the

 

principal operating costs of the vehicle or vessel and equipment,

 

including maintenance, fuel, repairs, supplies, vehicle insurance,

 

and personal expenses. If the contracting entity pays the

 

individual only the carrier's fuel surcharge and incidental costs,

 

such as tolls, permits, or lumper fees, the individual meets the

 

requirements of this subparagraph.

 

     (iii) The individual is responsible for supplying the necessary

 

services to operate the vehicle or vessel and equipment.

 

     (iv) The individual's compensation is based on factors related

 

to the work performed, such as a mileage-based rate or a percentage

 

of any schedule of rates, and is not solely based on hours or time

 

expended.

 

     (v) The individual substantially controls the means and manner

 

of performing services in conformance with regulatory requirements

 

and specifications of a shipper.

 

     (vi) The contracting entity and the individual sign and date an

 

agreement stating that the individual substantially meets the

 

requirements of subparagraphs (i) to (v) and that the individual

 

agrees to be an independent contractor and not an employee. The

 

agreement shall be produced on the demand of the director or the

 

director's agent.

 

     (2) A policy or contract of worker's compensation insurance,

 

by endorsement, may exclude coverage as to any 1 or more named

 

partners or the spouse, child, or parent in the employer's family.

 

A person excluded pursuant to this subsection is not subject to

 

this act and shall not be considered an employee for the purposes

 

of section 115.

 

     (3) An employee who is subject to this act, including an

 

employee covered pursuant to section 121, who is an employee of a

 

limited liability company of not more than 10 members and who is

 

also a manager and member, as defined in section 102 of the

 

Michigan limited liability company act, 1993 PA 23, MCL 450.4102,

 

and who owns at least a 10% interest in that limited liability

 

company, with the consent of the limited liability company as

 

approved by a majority vote of the members, or if the limited

 

liability company has more than 1 manager, all of the managers who

 

are also members, except as otherwise provided in an operating

 

agreement, may elect to be individually excluded from this act by

 

giving a notice of the election in writing to the carrier with the

 

consent of the limited liability company endorsed on the notice.

 

The exclusion remains in effect until revoked by the employee by

 

giving notice in writing to the carrier. While the exclusion is in

 

effect, section 141 does not apply to any action brought by the

 

employee against the limited liability company.

 

     (4) An employee who is subject to this act, including an

 

employee covered pursuant to section 121, who is an employee of a

 

corporation that has not more than 10 stockholders and who is also

 

an officer and stockholder who owns at least 10% of the stock of

 

that corporation, with the consent of the corporation as approved

 

by its board of directors, may elect to be individually excluded

 

from this act by giving a notice of the election in writing to the

 

carrier with the consent of the corporation endorsed on the notice.

 

The exclusion remains in effect until revoked by the employee by

 

giving a notice in writing to the carrier. While the exclusion is

 

in effect, section 141 does not apply to any action brought by the

 

employee against the corporation.

 

     (5) If the persons to be excluded from coverage under this act

 

pursuant to subsections (2) to (4) comprise all of the employees of

 

the employer, those persons may elect to be excluded from being

 

considered employees under this act by submitting written notice of

 

that election to the director upon a form prescribed by the

 

director. The exclusion shall remain remains in effect until

 

revoked by giving written notice to the director.