2009 -- H 5178

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LC00610

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STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2009

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A N A C T

RELATING TO LABOR AND LABOR RELATIONS -- THE TEMPORARY EMPLOYEE

PROTECTION ACT

     Introduced By: Representatives Diaz, Almeida, Slater, and Corvese

     Date Introduced: January 27, 2009

     Referred To: House Labor

It is enacted by the General Assembly as follows:

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     SECTION 1. Section 28-6.10-3 of the General Laws in Chapter 28-6.10 entitled "The

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Temporary Employee Protection Act" is hereby amended to read as follows:

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     28-6.10-3. Job description notification. -- (a) Before any temporary employee is given

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any new job assignment regardless if the assignment is with the same contracting company,

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employment agencies shall provide the temporary employee with the opportunity to see and have

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a copy of a written notice that includes a job description with classification requirements,

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estimated longevity of the assignment, information concerning any job hazards, anticipated pay

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rate, benefits and work schedules. A copy of the job description shall be kept on file for a period

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of one year by the employment agency and be available to the employee.

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      (b) A notice of this law must be posted and maintained at all employment agencies

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where workers can view it.

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     (c) For the purpose of this chapter, an individual performing any service for

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compensation shall be considered to be an employee unless:

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     (1) The individual is free from control and direction in connection with the performance

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of the service, both under his/her contract for the performance of service and in fact; and

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     (2) The service is performed outside the usual course of the business of the employer; and

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     (3) The individual is customarily engaged in an independently established trade,

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occupation, profession or business of the same nature as that involved in the service performed.

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     (d) The failure to withhold federal or state income taxes or to pay unemployment

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compensation contributions or workers' compensation premiums with respect to an individual's

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wages shall not be considered in making a determination under this section.

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     SECTION 2. Title 28 of the General Laws entitled "LABOR AND LABOR

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RELATIONS" is hereby amended by adding thereto the following chapter:

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     CHAPTER 54

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PROTECTION OF TEMPORARY EMPLOYEES

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     28-54-1. Short title. – This chapter shall be known and may be cited as the "Protection of

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Temporary Employees Act."

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     28-54-2. Statement of policy. – It is declared to be the public policy of this state to foster

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the employment of all individuals in the state including temporary employees working for any

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business and to safeguard their right to obtain and hold employment without discrimination, and

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to prevent the misclassification of workers as independent contractors instead of temporary

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employees.

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     28-54-3. Definitions. – For the purpose of this chapter:

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     (a) An individual performing any service for compensation shall be considered to be an

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employee unless:

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     (i) The individual is free from control and direction in connection with the performance

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of the service, both under his/her contract for the performance of service and in fact;

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     (ii) The service is performed outside the usual course of the business of the employer;

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and

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     (iii) The individual is customarily engaged in an independently established trade,

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occupation, profession or business of the same nature as that involved in the service performed.

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     (2) The failure to withhold federal or state income taxes or to pay unemployment

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compensation contributions or workers' compensation premiums with respect to an individual’s

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wages shall not be considered in making a determination under this section.

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     28-54-4.Waiver. – If an individual does not meet the condition of independent

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subcontractor, no waiver can be signed by them to make them an independent contractor.

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     28-54-5. Job description notification. – (a) Before any temporary employee is given any

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new job assignment regardless of whether the assignment is with the same contracting company,

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that company shall provide the temporary employee with the opportunity to see and have a copy

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of a written notice that includes a job description with classification requirements, estimated

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longevity of the assignment, information concerning any job hazards, anticipated pay rate,

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benefits and work schedules.

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     (b) A notice of this law must be posted and maintained at all employment agencies where

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workers can view it.

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     28-54-6. Penalty for violations. – Upon determining that a person has violated

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provisions of this chapter, the penalty for a first offense will be a fine of five hundred dollars

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($500). A second offense will be punishable by a fine of one thousand dollars ($1,000) and any

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subsequent violation will be punishable by a fine of five thousand dollars ($5,000).

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     28-54-7. Enforcement. – The department of labor shall be responsible for the

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enforcement of this act.

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     SECTION 3. This act shall take effect upon passage.

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LC00610

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N A C T

RELATING TO LABOR AND LABOR RELATIONS -- THE TEMPORARY EMPLOYEE

PROTECTION ACT

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     This act would clarify the distinction between independent contractors and employees for

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the purposes of this chapter. Further, this act would protect temporary employees by preventing

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them from being employed as independent contractors if they fail to meet the requirements of an

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independent contractor. It would also require notice of job description for new assignments and

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fine employers who attempt to misclassify temporary employees as independent contractors.

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     This act would take effect upon passage.

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LC00610

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