Md. Code Regs. 09.12.40.06

Current through Register Vol. 51, No. 22, November 1, 2024

Section 09.12.40.06 - Construction Illustrations

A. The illustrations in this regulation provide guidance under the Workplace Fraud Act only and do not apply to any other State or federal law.

B. The illustrations in §§C-J of this regulation provide guidance for the construction services industry in the application of Labor and Employment Article, §3-903(c), Annotated Code of Maryland.

C. John Brown has an oral agreement with ACE Building Company (ACE) to do carpentry work on houses in a development designated by ACE. John Brown supplies his own hand tools. ACE supplies the material for each job. He has to do the work himself and he works on a full time basis for the company. For some work he is paid on a piecework basis and for some work he is paid on an hourly basis. He does not have assistants, does not have an office, and does not advertise in newspapers or otherwise hold himself out to the public as being in the carpentry business. ACE can fire him any time before he finishes a job without contractual liability. John Brown is an employee of ACE.

D. HVAC, Inc. (HVAC) is the mechanical subcontractor on a large hospital construction contract. There is so much work to perform that HVAC contracts with two other companies, Air Supply, Inc. (Air Supply) and Kool and the Gang, Inc. (Kool), to assist with the work. Air Supply and Kool each have their own employees. HVAC retains some supervisory control over the employees of the other companies to make sure that the job is being done to the specifications of the overall mechanical contract. Air Supply and Kool exercise supervision over the installation methods of their respective workforces. Even though the two subcontractors are in the same business as HVAC and they perform the same type of work at the same location as HVAC, there is no employer-employee relationship between the contracting companies, and there is no employee-employer relationship between the subcontractors' employees and HVAC.

E. Sarah Green is a painting subcontractor who has contracted with XYZ General Contracting, Inc. (XYZ) to paint 264 houses. She hired 40 painters to do the work for her, although only about 15 are on the job at any one time. She supplies all the paint, brushes, and ladders. She designates the house to be painted and either pays the painters per house or by the hour. Detailed instructions about the work are not necessary because of the painters' skill in their trade. Sarah Green inspects the work and requires them to repaint any unsatisfactory work. The painters cannot engage helpers without her consent. She can discharge them for any reason, and they are free to resign at any time. The painters assume no business risks and have no capital investment. None of them has an established business. The painters are employees of Sarah Green, not XYZ, and Sarah Green is an independent contractor, not an employee of XYZ.

F. Milton Manning, an experienced tile and terrazzo journeyman, orally agreed with MEGA, Inc. (MEGA) to perform full-time services at construction sites. He uses his own tools and performs services in the order designated by MEGA and according to its specifications. MEGA supplies all materials, makes frequent inspections of his work, pays him on a piecework basis, and carries workers' compensation insurance on him. He does not have a place of business or hold himself out to perform similar services for others. Either party can end the services at any time. Milton Manning is an employee of MEGA.

G. Wallace Black agreed with the Sawdust Company (Sawdust) to supply the construction labor for a group of houses. The company agreed to pay all construction costs. However, Wallace Black supplies all the tools and the equipment. He performs personal services as a carpenter and mechanic for an hourly wage. He also acts as superintendent and foreman, and engages other individuals to assist him. Sawdust has the right to select, approve, or discharge any helper. A company representative makes frequent inspections of the construction site. When a house is finished, Wallace Black is paid a certain percentage of its costs. He is not responsible for faults, defects of construction, or wasteful operation. At the end of each week, he presents the company with a statement of the amount he has spent, including the payroll. Sawdust gives him a check for that amount from which he pays the assistants, two of whom are day laborers although he is not personally liable for their wages. Wallace Black and all of his assistants are employees of Sawdust.

H. Trisha Gold; Pristine; Painters.

(1) Trisha Gold is a painting contractor who has been subcontracted by Pristine Construction, Inc. (Pristine), the general contractor responsible for painting 20 individual cottages. Prior to entering the contract, Pristine seeks and obtains proof from Trisha Gold of payroll withholdings, payment of unemployment insurance and workers' compensation with respect to Trisha Gold's employees. Pristine also provides Trisha Gold with a written notice of her status as an independent contractor and the rights and obligations pursuant to that status. Per the terms of their written contract, Trisha Gold is to complete ten cottages.

(2) Trisha Gold hires Painters, LLC (Painters) to assist in the completion of this contract. Painters is responsible for delivery of five completed cottages. In order to ensure that the cottages are completed with matching colors, Pristine provides all of the paint. However, Trisha Gold and Painters each provide their own ladders and brushes. Painters work under Trisha Gold's direction and control and she sets the work hours for the job. Trisha Gold inspects Painters' work to ensure satisfactory performance and she is responsible for paying for any repairs for inadequate work. Trisha Gold is an independent contractor of Pristine. Painters' workers are employees of Trisha Gold. Painters and their workers are not employees of Pristine.

I. ABC Company (ABC) hires three crews of workers to do the siding on new houses in a residential development. ABC pays each of the crews per square foot of siding installed. ABC tells each crew leader that they are independent contractors responsible for their own workers' compensation premiums and any taxes. None of the crew leaders appears to have their own business, and they fail to get any workers' compensation coverage. One of the crew leaders is designated as general foreman and has been given total responsibility for running the job, but ABC has a superintendent who periodically walks the site to make sure the work is done properly. ABC also provides safety equipment for each worker. At the end of each week, ABC pays the crew leaders a lump sum based on the square footage of siding installed. The crew leader then pays each worker based on how much siding they installed. The workers doing the siding are employees of ABC.

J. POP; DIG. POP General Contracting (POP) leases two employees and a backhoe from DIG Excavators, Inc. (DIG). The DIG workers are engaged to open a trench, lay some pipe, and backfill the trench. Both POP and DIG contend that neither of them is the employer of the workers, that for purposes of these lend/lease type jobs, they are independent contractors for POP. None of the workers has his own business or pays his own workers' compensation. The workers always consider DIG to be their employer and if they have questions about how to do the job, they ask their boss at DIG. The workers are employees of DIG, even while they are leased-loaned to POP.

Md. Code Regs. 09.12.40.06

Regulation .06 adopted effective February 22, 2010 (37:4 Md. R. 340)