Massachusetts Independent Contractor 2010 Senate Budget Amendments (updated on 6/4/10)
Thank you to everyone who called their state senators on this issue! The State Senate budget was debated the week of May 26-28, 2010 and three Senate Budget amendments were filed on the issue. None of the amendments were adopted and some were withdrawn. Only one would have fixed it for our community and that was Amendment #200.
Amendment #260 falls short, as many artists of all disciplines have studios/work places outside of their home and have to often go off site to make their work (photographers, filmmakers, dancers, musicians, visual artists). There are other problems with this amendment as well, but it is best to focus on the above reason. (ie artists often hire other artists to work on large projects when they needs other skills sets, and this amendment does not allow this to occur, etc.). This is the language that is being put forth as a solution (is the language in HB4748 the redraft of HB1844)!
How to find your state senator-(on the form it says Senate in the General Court): http://www.wheredoivotema.com/bal/myelectioninfo.php
Background on the issue: The 2004 independent contractor law change, as many of you know, is negatively impacting our community and many other communities. (Refresher info on the Independent Contractor issue: http://www.artistsunderthedome.org/MAindependent_contractor.html )
Included is the language of the three independent contractor amendments at the end of this document. Also of note is that the Joint Committee on Labor and Workforce Development are to report out on HB1844 which is the legislation that would also fix the issues we are experiencing for the 2004 law change. Stay tuned as they say...
The proposed IC amendments:
Amendment #200 This is the amendment that would have fixed it for our community. It did not pass. All the republican senators voted for it and only one Democratic senator, Senator Rosenberg voted for it. Note it excluded any service in the construction trades which was the original so called reason why the change was done in 2004 to stop abuses in the construction trades.
Messrs. Tisei, Tarr, Knapik, Hedlund and Ross moved that the bill be amended by inserting, after Section ___, the following new Section:-
“SECTION __. Section 148B. (a) For the purpose of this chapter and chapter 151, an individual performing any service in the construction trades, except as authorized under this chapter, shall be considered to be an employee under those chapters unless:—
(1) the individual is free from control and direction in connection with the performance of the service, both under his contract for the performance of service and in fact; and
(2) the service is performed outside the usual course of the business of the employer; and,
(3) the individual is customarily engaged in an independently established trade, occupation, profession or business of the same nature as that involved in the service performed.
(b) For the purpose of this chapter and chapter 151, an individual performing any service, except as authorized under this chapter, shall be considered to be an employee under those chapters unless:—
(1) the individual is free from control and direction in connection with the performance of the service, both under his contract for the performance of service and in fact; and
(2) the service is performed outside the usual course of the business of the employer;
or,
(3) the individual is customarily engaged in an independently established trade, occupation, profession or business of the same nature as that involved in the service performed.”
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Amendment #207 - This amendment was withdrawn and would not have helped as most artists do not register for their trade.
GOV 207 INDEPENDENT CONTRACTORS II Messrs. Tisei, Tarr, Knapik, Hedlund and Ross moved that the bill be amended by inserting, after Section ___, the following new Section:-
“SECTION __. Section 148B of Chapter 149 of the General Laws, as appearing in the 2006 Official Edition, is hereby amended by striking out clause 2 of paragraph a in its entirety.
“and has validly registered said trade, occupation, profession or business pursuant to state law”
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Amendment #260- This amendment was also withdrawn- but it does not solve the issue as many artists of all disciplines work outside of their residence and/or hire other artists. This is the language being put forth as a solution.
Mr. McGee moved that the bill be amended by inserting after section ___ the following new section:-
“SECTION ___ The General Laws are hereby amended by inserting after chapter 149, section 147H the following section:-
SECTION 147I INDEPENDENT CONTRACTORS
(a) An individual whose work is performed solely in his/her place of residence shall be exempt from the requirements of M.G.L. c. 149, 148B(a)(2), but not sections (a)(1) and (a)(3). This section does not apply to individuals who work with or for the individual.
(b) The exception provided in paragraph (a) of this section shall not apply to an individual who has been coerced, threatened or intimidated into establishing an independent business nor shall it apply to individuals who telecommute or work remotely from home.
(c) Each individual seeking this exemption shall register with the Secretary of State and shall be issued without a fee. The registration shall contain, at a minimum, the following information: name of the individual seeking the exemption, the nature of the independently established business, the address of the residence at which the work is performed and proof that the address listed is the applicant's legal residence. The Secretary of State shall issue regulations necessary to ensure registration under this section. The document shall be typewritten, printed or in such other form as the Secretary of State shall prescribe. The document shall be executed by the individual seeking the exemption. The registration shall be renewed every three years.
To be informed of Massachusetts Legislation that impacts artists of all disciplines and arts small businesses and nonprofits- join the ArtistsUndertheDome.org's free listserv and also see their section on pending Massachusetts legislation.