Monday, May 11, 2009
Employee Misclassification and Health Care Discussed at Attorney General’s Business Roundtable
The Maryland Chamber of Commerce met with Maryland Attorney General Doug Gansler and representatives from the Office of the Attorney General to discuss the implications of the recently passed Workplace Fraud Act of 2009 and issues surrounding health care reform during the Office of the Attorney General Business Roundtable.
Co-Chairs of the Maryland Chamber of Commerce Employment Law Committee, Craig Ballew of Ferguson Schetlich & Ballew, and Fiona Ong of Shawe Rosenthal, with Jonathan Krasnoff, Deputy Counsel for the Department of Labor Licensing and Regulation, discussed employee misclassification and some of the issues left unaddressed by the Workplace Fraud Act of 2009.
The regulatory process surrounding employee misclassification and the intended goals of the regulations were discussed, and the limitation of the statute to the construction and landscaping industries and whether it could be expanded to apply to other industries in the future.
Also discussed was the application of the DLLR ABC test. The DLLR ABC test is used to determine employee status through assessing the employer’s direction and control over an individual, whether the individual is performing outside of the usual course of business of the employer, and whether the individual is independently established. Other tests applied under different laws to determine employee statuses often yield conflicting results. Krasnoff said that while there have been debates about creating a common test, there will continue to be different tests for different contexts to determine employee status, and the ABC Test will be used in cases of employee misclassification. An employer unintentionally violating the law because of a presumption of employee status created by the ABC test, and the lack of a safe harbor provision is a concern.
“We need a roadmap for certainty so that the inadvertent does not occur,” Ballew said. “The Chamber’s position has been consistent throughout: if employers are truly intentionally, fraudulently misclassifying employees, they need to be pursued, but our concern is that in the process of applying the statute, there may be others unknowingly violating the law and they may be caught up in the mix.”
Krassnoff said that efforts would be made to involve stakeholders in the promulgation of regulations so that the statute can be applied correctly.
“We look forward to working with the DLLR on the development of the regulations and affect how the regulations will be applied to ensure coverage of the law,” Ong said.
Maryland Chamber Vice President of Government Affairs Ron Wineholt, President of Benefirts Perspective Francel Smith, and OAG Health Education and Advocacy Unit Director Ellen Kuhn discussed issues surrounding health care, past legislation that has been introduced, and what lies in the future.
The defeat of employer health care mandates including the Healthy Maryland Program (SB 515/HB 860) and the Health Care Affordability Act of 2009 (SB 813/HB951), were discussed. Wineholt said that the Chamber continues to oppose universal health care plans that would be funded by taxes on employers and that a national program is preferred. Also discussed was the passage of small group health insurance reform (SB637/HB674), which will inject much needed market based reforms into the small group health insurance market.
View the video to watch Maryland Attorney General Doug Gansler give an overview of the roundtable discussion.
For more information about the issues discussed or about the Office of the Attorney General Business Roundtable contact the Maryland Chamber of Commerce at (410) 269-0642 or (301) 261-2858.
