Prohibiting the misclassification of employees as independent contractors, providing penalties, and including applicability provisions

This bill prohibits an employer from willfully misclassifying an individual who performs services for the employer in return for remuneration as an independent contractor rather than an employee with the effect of denying the individual eligibility for an employment benefit provided by law or for a government program. Whether an individual performs services as an employee or independent contractor is determined under regulations or guidelines of the federal internal revenue service in effect as of the date of an alleged misclassification. The bill is enforced by the department of workforce development. An employer who violates this prohibition shall be subject to a civil penalty of up to $5,000 per misclassified individual for a first offense, up to $7,500 per misclassified individual for a second offense, and up to $10,000 per misclassified individual for each subsequent offense. The department shall provide written notice to an employer prior to imposition of a civil penalty. An employer may contest and seek judicial review of a determination of the department pursuant to Code chapter 17A. An employer shall bear the burden of proving that the employer did not misclassify an individual. Upon a final determination of the department that a violation occurred and the conclusion of the period for any appeals, the department shall bring an action in district court to collect the civil penalties for deposit in the general fund and refer the violation to a county attorney. A county attorney shall not be bound by any determination of the department. An employer who misclassifies an individual in violation of the bill commits a class “D” felony. A class “D” felony is punishable by confinement for no more than five years and a fine of at least $1,025 but not more than $10,245. The bill applies to misclassification of an individual by an employer occurring on or after the effective date of the bill.