AB 462

This bill makes the following changes to current law regarding employee misclassifications:

Outreach and education regarding employee misclassification

The bill directs the commissioner of insurance to conduct, on at least an annual basis, outreach and education to insurers and other persons regulated by the state insurance laws on how to identify the misclassification of employees and report suspected misclassifications to the appropriate federal and state agencies.

Worker classification notice and posting

The bill requires the Department of Workforce Development to design and make available to employers a notice regarding worker classification laws, requirements for employers and employees, and penalties for noncompliance. Under the bill, all employers in this state must post the notice in a conspicuous place where notices to employees are customarily posted. The bill also provides a penalty of not more than $100 for an employer that does not post the notice as required.

Website for worker classification laws

Under the bill, DWD must establish and maintain on its website information regarding worker classification laws, requirements for employers and employees, penalties for noncompliance, and contact information at each state agency that administers worker classification laws.

Unemployment insurance; worker misclassification penalties

Current law requires DWD to assess an administrative penalty against an employer engaged in construction projects or in the painting or drywall finishing of buildings or other structures who knowingly and intentionally provides false information to DWD for the purpose of misclassifying or attempting to misclassify an individual who is an employee of the employer as a nonemployee under the unemployment insurance law. The penalty under current law is $500 for each employee who is misclassified, not to exceed $7,500 per incident. Current law additionally requires DWD to assess an administrative penalty against such an employer who, through coercion, requires an individual to adopt the status of a nonemployee in the amount of $1,000 for each individual so coerced, but not to exceed $10,000 per calendar year. Penalties are deposited in the unemployment program integrity fund.

The bill removes the $7,500 and $10,000 limitations on these penalties and provides that the penalties double for each act occurring after the date of the first determination of a violation. The bill also removes the limitations on the types of employers that the penalties apply to, allowing them to be assessed against any type of employer that violates the above prohibitions.

Worker’s compensation; penalties for uninsured employers

Under current law, DWD is required to assess an administrative penalty against an employer who requires an employee to pay for any part of worker’s compensation insurance or who fails to provide mandatory worker’s compensation insurance coverage. If the employer violates those requirements, for the first 10 days, the penalty under current law is not less than $100 and not more than $1,000 for such a violation. If the employer violates those requirements for more than 10 days, the penalty under current law is not less than $10 and not more than $100 for each day of such a violation.

The bill provides that the penalty for violations occurring after the second such violation is $3,000 per violation, or three times the amount of the insurance premium that would have been payable, whichever is greater. The bill also provides that the penalty for violations occurring after the third such violation is $4,000 per violation, or four times the amount of the insurance premium that would have been payable, whichever is greater.

Also under current law, if an employer who is required to provide worker’s compensation insurance coverage provides false information about the coverage to his or her employees or contractors who request information about the coverage, or fails to notify a person who contracts with the employer that the coverage has been canceled in relation to the contract, DWD is required to assess a penalty of not less than $100 and not more than $1,000 for each such violation.

The bill provides that the penalty for violations occurring after the third such violation is $3,000 per violation, and the penalty is $4,000 for violations occurring after the fourth such violation.

Worker’s compensation; false or fraudulent claims

Under current law, if an insurer or self-insured employer has evidence that a worker’s compensation claim is false or fraudulent, the insurer or self-insured employer must generally report the claim to DWD. If, based on the investigation, DWD has a reasonable basis to believe that criminal insurance fraud has occurred, DWD must refer the matter to the district attorney for prosecution. Also under current law, DWD may request assistance from the Department of Justice to investigate false or fraudulent activity related to a worker’s compensation claim. If, based on that investigation, DWD has a reasonable basis to believe that theft, forgery, fraud, or any other criminal violation has occurred, DWD must refer the matter to the district attorney or DOJ for prosecution. The bill extends these requirements to insurers who have evidence that an application for worker’s compensation insurance coverage is fraudulent or that an employer has committed fraud by misclassifying employees to lower the employer’s worker’s compensation insurance premiums.

Worker misclassification outreach

The bill requires the Department of Administration to direct state agencies, constitutional offices, departments, independent agencies, and societies, associations, and certain other agencies of state government for which appropriations are made by law, to provide educational outreach regarding worker misclassification to employers, workers, and organizations that serve vulnerable populations.

Worker misclassification information

The bill requires the Department of Financial Institutions to provide informational materials and resources on worker misclassification to each person who files with DFI documents forming a business corporation, nonstock corporation, limited liability company, limited liability partnership, or limited partnership.

Construction contractor registration

The bill requires most persons who hold themselves out or act as construction contractors to be registered by the Department of Safety and Professional Services. DSPS may directly assess a forfeiture by issuing an order against any person who fails to register as required under the bill. The registration requirement does not apply to a person who engages in construction on his or her own property, to a state agency or local governmental unit, or to a person who engages in construction in the course of his or her employment by a state agency or local governmental unit.

Construction industry violations

The bill authorizes the secretary of revenue to provide monetary awards to individuals who provide information to the Department of Revenue regarding alleged state tax law violations by construction industry employers. The amount of the award is at least 15 percent, but not more than 30 percent, of the proceeds collected by DOR resulting from an administrative or judicial action concerning the allegations or from any settlement of such action.

The bill allows the secretary to reduce the amount of the award if the secretary determines that the information provided by the individual resulted from an administrative or judicial hearing; from a government report, hearing, audit, or investigation; or from the news media. However, the secretary may not provide an award to an individual who is convicted of criminal conduct arising from the individual's role in the alleged violation. In addition, an individual who obtains information regarding an alleged state tax law violation through the individual's official duties as a DOR or DOJ employee is not eligible to receive an award.

Under the bill, no employer may discharge or otherwise discipline or discriminate against any employee who provides information about alleged state tax law violations by a construction industry employer to DOR or the secretary.

Audits and investigations

The bill requires the Unemployment Insurance Division in DWD to coordinate with the Division of Personnel Management in DOA to review all recruitment and onboarding programs to ensure that auditor positions are correctly classified and the compensation for auditors is comparable to that in the private labor market. The bill also requires DWD to review resources available to investigators and auditors and evaluate potential strategies and improvements that could be implemented by DWD. The bill also requires DWD to submit a report to the legislature of its findings no later than January 31, 2027.

Finally, the bill authorizes three full-time positions for DWD to perform investigations and audits regarding worker misclassification.

Because this bill creates a new crime or revises a penalty for an existing crime, the Joint Review Committee on Criminal Penalties may be requested to prepare a report.