{"id":5044,"date":"2024-06-27T17:25:42","date_gmt":"2024-06-27T17:25:42","guid":{"rendered":"https:\/\/www.fwhtlaw.com\/blog\/?p=5044"},"modified":"2024-07-01T12:55:19","modified_gmt":"2024-07-01T12:55:19","slug":"what-contractors-need-to-know-about-minnesotas-new-independent-contractor-legislation","status":"publish","type":"post","link":"https:\/\/www.fwhtlaw.com\/blog\/2024\/06\/27\/what-contractors-need-to-know-about-minnesotas-new-independent-contractor-legislation\/","title":{"rendered":"What Contractors Need to Know about Minnesota’s New Independent Contractor Legislation"},"content":{"rendered":"
By Lucas T. Clayton<\/a><\/h6>\n
Luke is a shareholder in the firm\u2019s Construction Law Department. He can be reached at 612.359.7628 or lclayton@fwhtlaw.com<\/a><\/h6>\n

In its past session, the Minnesota Legislature passed a bill seeking to address employer misclassification fraud (the \u201cBill\u201d).\u00a0 While it applies to all employers, there are portions of the Bill which uniquely affect construction businesses, most notably with respect to the classification of individuals as independent contractors.\u00a0 Among other things, the Bill creates a far more rigorous test for determining whether an individual in the construction context qualifies as an independent contractor, as compared with the existing statute.\u00a0 Moreover, the Bill provides for harsh penalties and liabilities for misclassification of such individuals. \u00a0Given the stiff consequences associated with misclassification set out in the Bill, it is very important for construction companies to work now to ensure that they do not run afoul of this new legislation.<\/p>\n

New Test for Independent Contractor Qualification<\/u><\/strong><\/p>\n

Currently, Minn. Stat. \u00a7 181.723, subd. 4, sets out a nine-factor test for determining if an individual performing or providing building construction or improvement services is an independent contractor or an employee.\u00a0 Effective March 1, 2025, this nine-fact test will be replaced with a fourteen-factor test. All of the factors, not just some, must be met and several are almost impossible for a hiring contractor to verify. The bolded provisions below highlight the most important requirements:<\/p>\n

Subd. 4. Independent Contractor<\/strong><\/p>\n

(a) An individual is an independent contractor and not an employee\u2026 only if the individual\u00a0is operating as a business entity that meets all of the following<\/strong> requirements at the time the services were provided<\/strong> or performed:<\/p>\n

(1) was established and maintained separately from and independently of the person for whom the services were provided or performed;<\/p>\n

(2) owns, rents, or leases equipment, tools, vehicles, materials, supplies, office space, or other facilities<\/strong> that are used by the business entity to provide or perform building construction or improvement services;<\/p>\n

(3) provides or performs<\/strong>, or offers to provide or perform, the same or similar building construction or improvement services for multiple persons or the general public;<\/p>\n

(4) is in compliance with all of the following:<\/strong><\/p>\n

(i)\u00a0 \u00a0 \u00a0 \u00a0holds a federal employer identification number<\/strong> if required by federal law;<\/p>\n

(ii)\u00a0 \u00a0 \u00a0 holds a Minnesota tax identification number<\/strong> if required by Minnesota law;<\/p>\n

(iii)\u00a0 \u00a0 \u00a0has received and retained 1099 forms<\/strong> for income received for building construction or improvement services provided or performed, if required by Minnesota or federal law;<\/p>\n

(iv)\u00a0 \u00a0 \u00a0has filed business or self-employment income tax returns<\/strong>, including estimated tax filings, with the federal Internal Revenue Service and the Department of Revenue, as the business entity or as a self-employed individual reporting income earned, for providing or performing building construction or improvement services, if any, in the previous 12 months; and<\/p>\n

(v)\u00a0 \u00a0 \u00a0has completed and provided a W-9 federal income tax form<\/strong> to the person for whom the services were provided or performed if required by federal law;<\/p>\n

(5) is in good standing<\/strong> as defined by section 5.26, if applicable;<\/p>\n

(6) has a Minnesota unemployment insurance account<\/strong> if required by chapter 268;<\/p>\n

(7) has obtained required workers’ compensation insurance<\/strong> coverage if required by chapter 176;<\/p>\n

(8) holds current business licenses<\/strong>, registrations, and certifications if required by chapter 326B and sections 327.31 to 327.36;<\/p>\n

(9) is operating under a written contract<\/strong> to provide or perform the specific services for the person that:<\/p>\n

(i)\u00a0 \u00a0 \u00a0 is signed and dated by both<\/strong> an authorized representative of the business entity and of the person for whom the services are being provided or performed;<\/p>\n

(ii)\u00a0 \u00a0\u00a0 is fully executed no later than 30 days after the date work commences;<\/strong><\/p>\n

(iii)\u00a0 \u00a0 identifies the specific services<\/strong> to be provided or performed under the contract;<\/p>\n

(iv)\u00a0 \u00a0 provides for compensation<\/strong> from the person for the services provided or performed under the contract on a commission or per-job or competitive bid basis and not on any other basis;<\/strong> and<\/p>\n

(v) the requirements of item (ii) shall not apply to change orders;<\/p>\n

(10) submits invoices and receives payments<\/strong> for completion of the specific services provided or performed under the written proposal, contract, or change order in the name of the business entity. Payments made in cash do not meet this requirement<\/strong>;<\/p>\n

(11) the terms of the written proposal, contract, or change order provide the business entity control over the means<\/strong> of providing or performing the specific services, and<\/strong> the business entity in fact controls the provision or performance<\/strong> of the specific services;<\/p>\n

(12) incurs the main expenses and costs<\/strong> related to providing or performing the specific services under the written proposal, contract, or change order;<\/p>\n

(13) is responsible for the completion of the specific services<\/strong> to be provided or performed under the written proposal, contract, or change order and is responsible, as provided under the written proposal, contract, or change order, for failure to complete the specific services; and<\/p>\n

(14) may realize additional profit or suffer a loss<\/strong>, if costs and expenses to provide or perform the specific services under the written proposal, contract, or change order are less than or greater than the compensation provided under the written proposal, contract, or change order.<\/p>\n

While the new test incorporates a number of the factors in the current statute, it includes several new factors, while also providing for more rigorous standards for a number of the holdover factors.<\/p>\n

Dangers Ahead<\/u><\/strong><\/p>\n

The new test measures compliance \u201cat the time the services were provided.\u201d\u00a0 This is a significant change, because it makes potential misclassification an ongoing issue throughout any project, as opposed to simply at the point of contracting.\u00a0 This requirement could lead to situations of inadvertent misclassification if, for example, a subcontractor fails to timely renew any state required licenses, registrations, or certifications during the course of the project, or where a contractor pays its subcontractor prior to receiving an invoice.\u00a0 Accordingly, it will be incumbent on upstream contractors to remain vigilant throughout the construction of any project to assure that its downstream contractors always remain in compliance with the new law.<\/p>\n

Furthermore, revised Minn. Stat. \u00a7 181.273 states that an individual who is providing or performing services for a subcontractor is an employee of the general contractor unless the subcontractor meets all of the requirements of the fourteen-point test.\u00a0 The revised statute does provide, however, that no employer-employee relationship is created if: (1) \u201cthere is an intervening business entity in the contractual chain between the [contractor] and the individual that meets the requirements\u201d of the fourteen-point test; or (2) the contractor \u201cestablishes that an intervening business entity treats and classifies the individual as an employee. . . .\u201d\u00a0 While these exceptions prevent unfettered liability down the entire contractual chain, the possibility that an individual providing work for a subcontractor could ultimately be classified as an employee of the upstream contractor is real.\u00a0 In such an instance, the upstream contractor would then be held responsible for the proper payment, insurance, and withholdings of all employees of the misclassified downstream contractor. In short, all these individuals would be considered employees of the contractor.\u00a0 This further highlights the importance of an upstream contractor making sure its downstream contractors comply with the new test for determining independent contractors.<\/p>\n

Some of the tests will be almost impossible for upstream contractors to verify. How, for example, will an upstream contractor ensure its downstream contractors have properly filed their state and federal taxes? Moreover, the new statute appears to restrict contracting options as payments can only be on \u201ca commission or per-job or competitive bid basis.\u201d It is unclear what this means or whether negotiated compensation rates or unit price contracts now violate the statute. Subcontracts must be executed within 30 days of starting work. While this sounds good in theory, in practice many subcontracts or POs remain unsigned, and if that practice continues, liability will result.<\/p>\n

Violations of Minn. Stat. 181.723 and Penalties<\/u><\/strong><\/p>\n

Effective July 1, 2024, under revised Minn. Stat. \u00a7 181.723, construction contractors are subject to liability for the following:<\/p>\n

1.\u00a0 \u00a0 Misrepresenting oneself as an independent contractor when they do not meet all of the requirements of the fourteen-point test described above;<\/p>\n

2.\u00a0 \u00a0 As a condition of payment requiring an individual who is an employee to register with the Minnesota Department of Labor and Industry (\u201cDOLI\u201d) as a construction contractor or agree to be classified as an independent contractor (with each instance of conditioned payment being a separate violation);<\/p>\n

3.\u00a0 \u00a0 Failing to classify, represent, or treat an individual as an employee in accordance with the requirements of any applicable local, state, or federal law;<\/p>\n

4.\u00a0 \u00a0 Failing to report or disclose a person as an employee to any local, state, or federal government agency when required to do so under any applicable local, state, or federal law;<\/p>\n

5.\u00a0 \u00a0 Requiring or requesting an individual who is an employee to enter into any agreement or complete any document that misclassifies, misrepresents, or treats the individual as an independent contractor;<\/p>\n

6.\u00a0 \u00a0 Requiring an employee to register as a construction contractor.<\/p>\n

Contractors may face a penalty of up to $10,000 for each individual violation.\u00a0 Moreover, individual owners, officers, or agent of an employer may be held individually liable if they \u201cknowingly or repeatedly engage[ ] in any of the prohibited activities\u201d set forth in the revised statute.\u00a0 Further, the employer may be ordered by DOLI to pay compensatory damages to each affected individual through: minimum wage, overtime, shift differentials, vacation pay, sick pay, health insurance, life and disability insurance, retirement plans, savings plans and other benefits, employer contributions to unemployment insurance, Social Security and Medicare, and any costs and expenses incurred by the individual resulting from the employer\u2019s failure to classify, represent, or treat the individual as an employee.<\/p>\n

Stop Work Orders <\/u><\/strong><\/p>\n

Effective March 1, 2025, DOLI\u2019s enforcement powers with respect to independent contractor misclassification will be greatly expanded to include, among other things, the power to issue stop work orders.\u00a0 Specifically, as of that date, DOLI will have the authority to order a contractor to cease business operations at one or more of its workplaces if DOLI determines that the contractor violated one of more laws, including violations of Minn. Stat. \u00a7 181.723.\u00a0 Any such stop work orders will remain in effect until lifted by the Commissioner, upon finding that the business has come into compliance with the law and has paid any remedies, damages, and penalties.\u00a0 The Commissioner is also vested with the authority to assess a civil penalty of up to $5,000 per day against a business for each day the business conducts business operations in violation of a stop work order.<\/p>\n

Relationship to Responsible Contractor Legislation<\/u><\/strong><\/p>\n

The changes in the law set forth above also tangentially affect other legislation, such as the Responsible Contractor Law (\u201cRCL\u201d), Minn. Stats \u00a7 16C.285.\u00a0 Under the RCL, in order to be considered a responsible contractor, capable of being awarded a public construction contract in Minnesota, a contractor must, among other, verify that it meets certain minimum criteria.\u00a0 Among those criteria is the following:<\/p>\n

(3) the contractor or related entity is in compliance with<\/strong> and, during the three-year period before submitting the verification, has not violated sectio<\/strong>n\u00a0<\/strong>181.723<\/strong>\u00a0or chapter 326B. For purposes of this clause, a violation occurs when a contractor or related entity has been issued a final administrative or licensing order.<\/p>\n

Minn. Stat. \u00a7 16C.285, subd. 3 (3).\u00a0 Accordingly, as part of the verification required by a contractor under the RCL, it must confirm that in the three-year period prior to the contractor\u2019s verification, it has not been found in violation of Minn. Stat. \u00a7 181.723 by misclassifying an alleged independent contractor.\u00a0 If a contractor is found to be in violation of Minn. Stat. \u00a7 181.723, through the issuance of a final administrative or licensing order, then, under the RCL, that contractor will be ineligible to be awarded a public construction contract in Minnesota for three-years following such an order.\u00a0 Obviously, given the draconian penalty of the RCL set forth above, it is incumbent on contractors to be aware of, and comply with, the changes to Minn. Stat. \u00a7 181.723 described in this Briefing Paper.<\/p>\n

Conclusion<\/u><\/strong><\/p>\n

Although several of the changes set forth above do not come into effect until March 1, 2025, it is important for contractors to begin putting things in place now so they are prepared and ready to ensure compliance from their downstream contractors.\u00a0 In particular, given the severe consequences for non-compliance, upstream contractors need to put processes in place and amend their contract forms to ensure that their subcontractors meet the new fourteen-point test set forth above.\u00a0 If you have questions about how to best set up your business to comply with this new legislation, please contact Fabyanske, Westra, Hart, & Thomson\u2019s construction attorneys.<\/p>\n

Announcements<\/u><\/strong><\/p>\n

Fabyanske, Westra, Hart & Thomson, P.A.<\/strong> has been ranked as a Band 1 Construction Law Firm in Minnesota<\/strong> by the well-recognized Chambers<\/strong> professional rating service.<\/p>\n

Dean Thomson<\/a><\/strong> (Band 1 Construction Law)<\/p>\n

Kyle Hart<\/a> (<\/strong>Band 1 Construction Law)<\/p>\n

Mark Becker<\/a><\/strong> (Band 1 Construction Law)<\/p>\n

Jesse Orman<\/a><\/strong> (Band 3 Construction Law)<\/p>\n

Rory Duggan<\/a><\/strong> (Band 3 Real Estate Law)<\/p>\n

Julia Douglass<\/a><\/strong> (Up and Coming)<\/p>\n

Here\u2019s what Chambers has to say about FWHT:<\/strong> \u201cThe team is esteemed for its dedicated construction group, which brings deep industry insight to disputes, contract negotiations, planning issues and arbitration matters. The group represents diverse participants from the public and private sectors, including design professionals, insurers and subcontractors. The firm frequently acts on large-scale regional and national projects. It has attorneys who are well known in the sector, having been appointed to leadership roles at a variety of industry bodies.\u201d\u00a0\u201cThis firm\u2019s results are always exceptional, so there is great value in their services.\u201d \u201cTheir team of attorneys know construction and construction law inside and out.\u201d<\/strong><\/em> For more information click here.<\/a><\/u><\/strong><\/p>\n

Fabyanske, Westra, Hart & Thomson, P.A. <\/strong>is pleased to announce that Mpls. St. Paul Magazine <\/strong>has named\u00a0Julia Douglass<\/a>\u00a0<\/strong>as as one of the \u201cTop Women Attorneys in Minnesota\u201d <\/strong>in its April 2024 issue. For more information click here.<\/a><\/u><\/strong><\/p>\n

Mark Becker<\/a>\u00a0<\/strong>is recognized by Minnesota Lawyer as a\u00a0Power 30 attorney<\/a>\u00a0<\/strong>in the field of Real Estate and Construction Law.\u00a0 Congratulations to Mark at Fabyanske, Westra, Hart and Thomson <\/strong>for this prestigious recognition. For more information click here.<\/a><\/u><\/strong><\/p>\n","protected":false},"excerpt":{"rendered":"

By Lucas T. Clayton Luke is a shareholder in the firm\u2019s Construction Law Department. He can be reached at 612.359.7628 or lclayton@fwhtlaw.com In its past session, the Minnesota Legislature passed a bill seeking\u2026<\/p>\n","protected":false},"author":8,"featured_media":5056,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[7,26],"tags":[],"class_list":["post-5044","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-briefing-papers","category-lucas-t-clayton"],"acf":[],"yoast_head":"\nWhat Contractors Need to Know about Minnesota's New Independent Contractor Legislation - Fabyanske, Westra, Hart & Thomson<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.fwhtlaw.com\/blog\/2024\/06\/27\/what-contractors-need-to-know-about-minnesotas-new-independent-contractor-legislation\/\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"What Contractors Need to Know about Minnesota's New Independent Contractor Legislation - Fabyanske, Westra, Hart & Thomson\" \/>\n<meta property=\"og:description\" content=\"By Lucas T. 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He can be reached at 612.359.7628 or lclayton@fwhtlaw.com In its past session, the Minnesota Legislature passed a bill seeking\u2026\" \/>\n<meta property=\"og:url\" content=\"https:\/\/www.fwhtlaw.com\/blog\/2024\/06\/27\/what-contractors-need-to-know-about-minnesotas-new-independent-contractor-legislation\/\" \/>\n<meta property=\"og:site_name\" content=\"Fabyanske, Westra, Hart & Thomson\" \/>\n<meta property=\"article:published_time\" content=\"2024-06-27T17:25:42+00:00\" \/>\n<meta property=\"article:modified_time\" content=\"2024-07-01T12:55:19+00:00\" \/>\n<meta property=\"og:image\" content=\"https:\/\/www.fwhtlaw.com\/blog\/wp-content\/uploads\/2024\/06\/Luke-Clayton-550x275-1.jpg\" \/>\n\t<meta property=\"og:image:width\" content=\"550\" \/>\n\t<meta property=\"og:image:height\" content=\"275\" \/>\n\t<meta property=\"og:image:type\" content=\"image\/jpeg\" \/>\n<meta name=\"author\" content=\"John Mansir\" \/>\n<meta name=\"twitter:card\" content=\"summary_large_image\" \/>\n<meta name=\"twitter:label1\" content=\"Written by\" \/>\n\t<meta name=\"twitter:data1\" content=\"John Mansir\" \/>\n\t<meta name=\"twitter:label2\" content=\"Est. reading time\" \/>\n\t<meta name=\"twitter:data2\" content=\"11 minutes\" \/>\n<script type=\"application\/ld+json\" class=\"yoast-schema-graph\">{\"@context\":\"https:\/\/schema.org\",\"@graph\":[{\"@type\":\"WebPage\",\"@id\":\"https:\/\/www.fwhtlaw.com\/blog\/2024\/06\/27\/what-contractors-need-to-know-about-minnesotas-new-independent-contractor-legislation\/\",\"url\":\"https:\/\/www.fwhtlaw.com\/blog\/2024\/06\/27\/what-contractors-need-to-know-about-minnesotas-new-independent-contractor-legislation\/\",\"name\":\"What Contractors Need to Know about Minnesota's New Independent Contractor Legislation - Fabyanske, Westra, Hart & Thomson\",\"isPartOf\":{\"@id\":\"https:\/\/www.fwhtlaw.com\/blog\/#website\"},\"datePublished\":\"2024-06-27T17:25:42+00:00\",\"dateModified\":\"2024-07-01T12:55:19+00:00\",\"author\":{\"@id\":\"https:\/\/www.fwhtlaw.com\/blog\/#\/schema\/person\/6b135c74354fdf14ce071a939f531d92\"},\"breadcrumb\":{\"@id\":\"https:\/\/www.fwhtlaw.com\/blog\/2024\/06\/27\/what-contractors-need-to-know-about-minnesotas-new-independent-contractor-legislation\/#breadcrumb\"},\"inLanguage\":\"en-US\",\"potentialAction\":[{\"@type\":\"ReadAction\",\"target\":[\"https:\/\/www.fwhtlaw.com\/blog\/2024\/06\/27\/what-contractors-need-to-know-about-minnesotas-new-independent-contractor-legislation\/\"]}]},{\"@type\":\"BreadcrumbList\",\"@id\":\"https:\/\/www.fwhtlaw.com\/blog\/2024\/06\/27\/what-contractors-need-to-know-about-minnesotas-new-independent-contractor-legislation\/#breadcrumb\",\"itemListElement\":[{\"@type\":\"ListItem\",\"position\":1,\"name\":\"Home\",\"item\":\"https:\/\/www.fwhtlaw.com\/blog\/\"},{\"@type\":\"ListItem\",\"position\":2,\"name\":\"What Contractors Need to Know about Minnesota’s New Independent Contractor Legislation\"}]},{\"@type\":\"WebSite\",\"@id\":\"https:\/\/www.fwhtlaw.com\/blog\/#website\",\"url\":\"https:\/\/www.fwhtlaw.com\/blog\/\",\"name\":\"Fabyanske, Westra, Hart & Thomson\",\"description\":\"Twin Cities Law Firm | Business Attorneys\",\"potentialAction\":[{\"@type\":\"SearchAction\",\"target\":{\"@type\":\"EntryPoint\",\"urlTemplate\":\"https:\/\/www.fwhtlaw.com\/blog\/?s={search_term_string}\"},\"query-input\":\"required name=search_term_string\"}],\"inLanguage\":\"en-US\"},{\"@type\":\"Person\",\"@id\":\"https:\/\/www.fwhtlaw.com\/blog\/#\/schema\/person\/6b135c74354fdf14ce071a939f531d92\",\"name\":\"John Mansir\",\"image\":{\"@type\":\"ImageObject\",\"inLanguage\":\"en-US\",\"@id\":\"https:\/\/www.fwhtlaw.com\/blog\/#\/schema\/person\/image\/\",\"url\":\"https:\/\/secure.gravatar.com\/avatar\/127405e9f8f9272ac5748796e7ddc8013e1b51eb3e9eafeb91c84180a9d11105?s=96&d=mm&r=g\",\"contentUrl\":\"https:\/\/secure.gravatar.com\/avatar\/127405e9f8f9272ac5748796e7ddc8013e1b51eb3e9eafeb91c84180a9d11105?s=96&d=mm&r=g\",\"caption\":\"John Mansir\"},\"url\":\"https:\/\/www.fwhtlaw.com\/blog\/author\/jmansirfwhtlaw-com\/\"}]}<\/script>\n<!-- \/ Yoast SEO plugin. -->","yoast_head_json":{"title":"What Contractors Need to Know about Minnesota's New Independent Contractor Legislation - Fabyanske, Westra, Hart & Thomson","robots":{"index":"index","follow":"follow","max-snippet":"max-snippet:-1","max-image-preview":"max-image-preview:large","max-video-preview":"max-video-preview:-1"},"canonical":"https:\/\/www.fwhtlaw.com\/blog\/2024\/06\/27\/what-contractors-need-to-know-about-minnesotas-new-independent-contractor-legislation\/","og_locale":"en_US","og_type":"article","og_title":"What Contractors Need to Know about Minnesota's New Independent Contractor Legislation - Fabyanske, Westra, Hart & Thomson","og_description":"By Lucas T. 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