Mass WC

 
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Old 02-14-2008, 12:49 AM   #1
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Mass WC


Is anyone facing an incredible tightening of interpretations of the WC regs here in MA ?

Now, I'm a solo, non-incorporated paper hanger, so immediately I fall into the sole proprietor business category, which as you know is not REQUIRED to carry WC but is now allowed to.

I just did a job for a GC and his ins co says I am not legally classified as a sub. WHAT ???? I work for this guy on maybe two jobs a year. I can establish the "three prongs" of the Independent Contractor Law to be present:

  1. the worker must be free from the presumed employer’s control and direction in performing the service, both under contract and in fact.
  2. the service provided by the worker must be outside the employer’s usual course of business.
  3. the worker must be customarily engaged in an independent trade occupation, profession or business of the same type.

But this guy's ins agent is coming down hard and saying EVERYONE who works on his jobs needs a cert of ins or he's paying the premiums.

I'm just wondering if other people are experiencing a confusion by their ins carriers ???

I'm thinking the insurance co's are just looking for a few extra shekels.

(The NFL Players Assoc Lawyers are going after the insurance co's to pay WC claims to injured players many years into retirement - so I'm thinking they are scratching under EVERY rock)

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Old 02-14-2008, 02:11 AM   #2
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Re: Mass WC


Quote:
Originally Posted by daArch View Post
Is anyone facing an incredible tightening of interpretations of the WC regs here in MA ?

Now, I'm a solo, non-incorporated paper hanger, so immediately I fall into the sole proprietor business category, which as you know is not REQUIRED to carry WC but is now allowed to.

I just did a job for a GC and his ins co says I am not legally classified as a sub. WHAT ???? I work for this guy on maybe two jobs a year. I can establish the "three prongs" of the Independent Contractor Law to be present:
  1. the worker must be free from the presumed employer’s control and direction in performing the service, both under contract and in fact.
  2. the service provided by the worker must be outside the employer’s usual course of business.
  3. the worker must be customarily engaged in an independent trade occupation, profession or business of the same type.
But this guy's ins agent is coming down hard and saying EVERYONE who works on his jobs needs a cert of ins or he's paying the premiums.

I'm just wondering if other people are experiencing a confusion by their ins carriers ???

I'm thinking the insurance co's are just looking for a few extra shekels.

(The NFL Players Assoc Lawyers are going after the insurance co's to pay WC claims to injured players many years into retirement - so I'm thinking they are scratching under EVERY rock)

There is alot more them 3 prongs!!
You actually violate # 2, as the GC has to use you as part of his services sold.

Sounds like it is time to get DBA'ed, and run a legit business, instead of getting your 1099 made out to a SS#, instead of a Tax payer I.D. #
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Old 02-14-2008, 06:03 AM   #3
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Re: Mass WC


This is nothing new. I am also a sole proprietor and have WC for a few years. The contractors that I work for require it (well their ins cos do)

It is a scam as I can not actually put a claim in on it.

I look at it as a cost of doing business. $500.00 bucks a year to keep working.
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Old 02-14-2008, 07:06 AM   #4
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Re: Mass WC


It's not a scam.....It's actually good legislation, (if there is such a thing).
California recently passed some similar legislation, however, singled-out roofers only.
Imagine if all your competition began calling their employees "subs", yet continued to pay them the same rate as an employee, eliminating their direct labor burden costs. A legitimate company could not stay in business. That's exactly what's happenen in Colorado.
Colorado has similar legislation, however it's ignored!
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Old 02-14-2008, 08:43 AM   #5
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Re: Mass WC


DaArch,

The reason you need to provide a valid WV policy to your GC is because he takes the policy you provide, and uses that to exempt the dollars (exposure) that he paid you from the total cost of his policy.

If you did $50k worth of work for him, his rate of maybe $8/$100, would cost his policy $4000, whereas your policy as a single worker, and no employees, would only cost you around $500-700, and would save him the $4k in added premiums. Your pricing to him should include this added to cost to you.

If you ever hire employees or subs without WC, you will be covering them under your plan, at a rate of Maybe $4/$100 for a paperhanger. The reason it is not really a scam, is that you could purchase an owners policy that would protect you for around $4k-$5k. Most people opt for the cheap was out since they already pay for Health Insurance.

Another way to get covered by WC is to get "S" Corp or "LLC" status, and give your self a paycheck, which will add to your exposure, but will allow you to be covered.
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Old 02-14-2008, 09:45 AM   #6
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Re: Mass WC


First, as you all know, every state has different WC laws. What applies in Calif DOES NOT necessarily apply in Mass.

Second, whether I am LLC, S, dba, or self employed has NO BEARING on me being a legitimate business.

Third, as of 1997 (I think it was) Sole proprietors, dba's, etc etc have been ALLOWED to carry WC in Mass. Before we were NOT even allowed to be covered. I incorporated in 82 so that all employees (myself included) of my then painting business could be covered. (Corp was dissolved in 87 when I got out of painting)

If you read the prongs that MASSACHUSETTS sets as a test, I do not see how the LAW applies to me.

Please do not allow opinions of whether I should or should not carry WC to influence your interpretations. And the rates here in MA for a paperhanger is 6.85%. I would need to increase my rates by 10% to cover the premiums and the extra business time of paper work. This is an expense I have tired to avoid in an industry that is really hurting.

The prices thrown out here are inaccurate. It would cost me a MINIMUM of $500 just to be enrolled in a WC policy. At the end of the year, ALL my payroll would be accessed the 6.85 %. That's $685 per 10,000 of payroll.

But anyway, the thrust of my question was not asking for interpretations of Mass WC laws, I've been keeping abreast of them for many years. I wanted to now if anyone else is noticing a tightening of the interpretations of the regs?? I was trying get a feeling if the GC I know is an anomaly or if EVERYONE is being scrutinized a little differently this year in MASSACHUSETTS.

thanks
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Old 02-14-2008, 10:09 AM   #7
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Re: Mass WC


DA

I wasn't looking to offend you.....

You asked a question, I offered what information I had. I am not speaking to your classification as a sub, I was offering justification for this statement

Quote:
Originally Posted by daArch View Post

But this guy's ins agent is coming down hard and saying EVERYONE who works on his jobs needs a cert of ins or he's paying the premiums.
As far as the part about the S-Corp and LLC that was not aimed at you, Scott earlier said that he is not coverd by his policy, I was showing that he could be covered, but he would have to pay for it.

BTW I am in Mass, and have yet to work for a legitimate contractor that did not insist on proof of WC.
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Old 02-14-2008, 01:24 PM   #8
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Re: Mass WC


Pearce,

I know no offence was intended and no offence is taken. I also know that there are many different interpretations, perceptions, and opinions of the state's WC laws. That's only to the benefit of lawyers.

I also know that the State AG has asked for comments on possible changes to the laws. Comments were welcomed until Jan 25. I have a feeling some ins agents are confusing POSSIBLE future changes with present regs.

And thus my initial question of whether others, especially GC's like yourself, are noticing a tightening of interpretations of the WC regs by their carriers.

OH, and that date of 1997 I stated in my last post was erroneous. That revision was made in 2002.

-Bill
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Old 02-14-2008, 01:35 PM   #9
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Re: Mass WC


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Old 02-14-2008, 01:38 PM   #10
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Re: Mass WC


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Old 02-14-2008, 06:22 PM   #11
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Re: Mass WC


Quote:
Originally Posted by daArch View Post
And thus my initial question of whether others, especially GC's like yourself, are noticing a tightening of interpretations of the WC regs by their carriers.
Bill,

On my last WC audit, I was told that they were tightening up on what they allowed for exemption from the premium. I had 2 subs that were working almost exclusively for me, and was told that the next audit, they need to be viable business on their own, not just an employee in disquise. So I made them give me proposals and invoices on every job, and let them sit at home now and then. I also made them go out and do some work for other companies, I got them hooked up with my old employer, just so that they would have more than just my 1099 at the end of the year. I'll know better whether they are serious about the changes soon, but they did say to expect it. SO to answer your question, Yes I am seeing a squeeze. Kevin
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Old 02-14-2008, 09:18 PM   #12
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Re: Mass WC


Thank you Kevin, and RenaissanceR.

That's the info I'm looking for to inform others. I just wanted to make sure others were having the squeeze put on them also. I am convinced there are so many contractors that are "stretching" the definitions, that the ins co's are "tightening" them as a reaction.

Now, Kevin, I could offer my opinion to your situation with your subs, but that's not my place. I have attached to this post three pdf's from the DIA and AG that are the laws. I invite you to read them, if you already haven't, to become better educated as to what the laws are.

Please excuse the red "boxes". I put them there to highlight what I wanted the painter and GC in question to take particular note.

spring-07.pdf

Independent_Contractor_2004.pdf

Employerguide1-11.pdf
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Old 02-14-2008, 09:35 PM   #13
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Re: Mass WC


Bill, as things have slowed down, I have been able to get away from the potential problems with my subs. I'm taking smaller projects, and doing most work myself, and am only using one sub on a semi-regular basis, and I am less than 25% of his business. He is allowed to work on my jobs independently, and he does jobs start to finish.

But I do plan on getting bigger jobs as soon as I can, and will be more cautious of the proper relationship. When I started the "Sub" structure, it was before people were worried about the fall-out. I guess I can take something good from the slow-down, as I am working on systems and preparing to run the business end of things more effectively.
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Old 02-14-2008, 09:38 PM   #14
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Re: Mass WC


Bill, a few years ago I got a policy to cover day labor since (helpers) most of my work is done by subs. After my first year I got my first audit and they wanted to charge me 8%+ for all of the labor that I paid my subs. They finally let it go with an agreement that I require all of my subs to have a WC policy. You can get one for about $300-$500 if you have zero payroll and you do not cover yourself. Just make sure you get a copy of any subs WC and general liability and keep it on file!
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Old 02-14-2008, 10:19 PM   #15
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Re: Mass WC


At my yearly audit, they try to hammer me for the same subs over and over again. My subs are not required to carry WC though they just have to prove that they are in business for themselves and work for other clients.

But every year they require I provide the same proof over and over again. Very annoying.

I don't even have to carry WC but carry a small policy anyways. That's what drives me nuts. A $500 gives me the most aggravation.
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Old 02-14-2008, 11:44 PM   #16
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Re: Mass WC


What sounds like a possible stickling point to all of us is the second prong.

Quote:
To qualify as an independent contractor, the worker’s job or service also must be performed “outside the usual course of business of the employer.” Hence, a worker who performs the same type of work that is part of the normal service delivered by the employer may not be treated as an independent contractor.
In other words, as a paperhanger, I can not hire another paperhanger to help me on ANY NUMBER of jobs during the year without supplying him/her with WC, unless of course he/she has their own WC and supplies me with a cert.

Remember, ALL THREE PRONGS must be satisfied. Its NOT just if the sub works a small percentage of the time, or if the sub is left alone and allowed to determine his/her schedule and procedure. ALL THREE PRONGS MUST BE SATISFIED !! If you are a carpenter and you hire a kid with a hammer to help drive a few nails one day, that $60 you pay him is subject to the WC premium.

That's how I read the regs.

IMO, the state should say that EVERY F'ING WORKER MUST BE COVERED. Whether you are self employed or working for a company. Whether you are a cleaning lady, window washer, handy man, or whatever. That sure would HELP to even the playing field with the station wagon bandits, and would negate the confusion I see happening right now. It would also probably reduce EVERYONE'S rates. Again, this is only my opinion.


-Bill

Last edited by daArch; 02-14-2008 at 11:47 PM.
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Old 02-15-2008, 12:56 AM   #17
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Re: Mass WC


Its the general liability insurance that requires your subs have comp. I currently pay comp for my two employees. I opted out for myself. When we work for other GC's, the GC is covered for my employees AND me under my employees comp policy, so I do not need the $500 policy.

All of my subs have to have liability and comp. I also have to watch the % of work that I sub out.
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Old 02-15-2008, 06:08 AM   #18
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Re: Mass WC


My use of the term "scam' is based on my policy.

To work for GC's I must have a WC policy, otherwise what they pay me is used to calculate their premium and I could theoretically file a claim on their policy shoud I be hurt on their job.

So their ins co mandates their subs carry comp. I can get a policy for $500.00or so that says "I have comp". This exempts me from their policy and I can not file a claim on their policy or mine or against a homeowners policy.

So the scam lies in the fact that an insurance co has forced me to buy more insurance from another insurance co that can not be used for anything.

Like I said earlier I chalk it up to another cost of doing business. Not a big deal. It actually gives me an edge over the next guy that does not have the coverage.

I wish I could get my customers to pay me $500.00 to NOT have me do anything for them.
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Old 02-15-2008, 07:32 AM   #19
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Re: Mass WC


Quote:
Originally Posted by daArch View Post
IMO, the state should say that EVERY F'ING WORKER MUST BE COVERED. Whether you are self employed or working for a company. Whether you are a cleaning lady, window washer, handy man, or whatever. That sure would HELP to even the playing field with the station wagon bandits, and would negate the confusion I see happening right now. It would also probably reduce EVERYONE'S rates. Again, this is only my opinion.
-Bill
I agree 100% with that! Get caught working with out a policy, pay a fine, turn in your competitor that took a job from you for not playing by the rules, you get half of his fine.

The second "prong" appears to be nearly impossible to get by. It is not reasonable to assume that we will not network with others in our own field, and help out a competitor when they may need work, or sub out work that we normally would do, but the size of the job, or the timeframe does not allow us to do it in-house.

Another problem I have personally is the vagueness of the policy regarding what we are allowed to do under our policy, and still be protected. If your agent mis-classifies you, you may not be able to collect on a legitimate claim. My agent tells me that I can remove/install a toilet, if I am replacing the floor. His justification is....I can't just go replacing toilets for a living, but if I need to do one now and then to facilitate a flooring project which I am insured for, I am covered. I do not see this in my policy, and do not really feel that a (GL) claim would be paid if I didn't set the toilet back correctly, and it ruined the lower level. I feel that for GL, they have a lot of wiggle room to deny a claim, and since I have never had a claim made, I wonder how protected I really am.
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Old 02-15-2008, 08:03 AM   #20
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Re: Mass WC


I just lifted this from the JLC site (Thanks to Dick S.), you may find it interesting to see what may be coming to Mass, and what half the other states are already doing
Attached Files
File Type: pdf Employer-EmployeeRelationships.pdf (67.2 KB, 34 views)
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