Introduced By: Senators Irons, Connors, Tavares, Coderre and Polisena
Date Introduced : February 5,, 1998
It is enacted by the General Assembly as follows:
SECTION 1. Section 28-42-7 of the General Laws in Chapter 28-42 entitled "Employment Security -- General Provisions" is hereby amended to read as follows:
28-42-7. Independent contractor and employee distinguished.
-- {DEL Services performed by an individual for wages
shall be deemed to be employment subject to chapters 42 -- 44
of this title unless and until it is shown to the satisfaction
of the director that the: DEL}
{DEL (1) Individual has been and will continue to be free from
control or direction by another with respect to the performance
of those services, both under his or her contract of service and
in fact; DEL}
{DEL (2) Service is either: DEL}
{DEL (i) Outside the usual course of the business for which
that service is performed; or DEL}
{DEL (ii) Performed outside of all the places of business of
the enterprise for which that service is performed; and DEL}
{DEL (3) Individual is customarily engaged in an independently
established trade, occupation, profession, or business. DEL}
{ADD The determination of independent contractor or employee status for purposes of chapter 42-44 shall be the same as those factors used by the Internal Revenue Service in its code and regulations. ADD}
SECTION 2. Section 28-43-12 of the General Laws in Chapter 28-43 entitled "Employment Security -- Contributions" is hereby amended to read as follows:
28-43-12. Adjustments -- Refund of overpayments. -- If an employer makes application for refund or credit of any amount paid as contributions or interest under this title and the director determines that the amount or any portion thereof was erroneously collected, the director shall, in his or her discretion, either allow a credit therefor, or by voucher duly drawn by the director in an amount and in such manner as the director may prescribe, direct the general treasurer to pay the amount determined to be erroneously collected from the clearance account of the employment security fund or, in the event of an overpayment of interest, from the employment security interest fund. If, in the discretion of the director, a credit is to be allowed, that credit shall be applied against the payment or payments of contributions next due from the employer subsequent to the determination of the director. No refund or credit shall be allowed with respect to a payment as contributions or interest, unless an application therefor shall be made in writing on or before whichever of the following dates is later: (i) one year from the date on which the payment was made; or (ii) three (3) years from the last day of the period with respect to which the payment was made. For a like cause and within the same period a refund may be made, or a credit allowed, on the motion of the director. If the director determines that contributions or interest were erroneously paid to this state on wages insured under the employment security law of some other state or of the federal government, refund or adjustment thereof may be made without interest, irrespective of the time limits provided in this section, on the submission of proof satisfactory to the director that contributions or interest on the wages have been paid to the other state or to the federal government. No interest shall be allowed or paid with respect to any refund. No refund or credit shall be allowed if the amount involved is less than one dollar ($1.00). Nothing in this title, or any part thereof, shall be construed to authorize any refund or credit of money due and payable under the law and regulations in effect at the time the money was paid, except that refunds to federal instrumentalities may be made in accordance with the terms set forth in section 28-42-8(5).
{ADD Whenever an employer who is liable to provisions of chapters 39 to 44 inclusive of this title does not report the correct amount of contributions, an assessment of additional contributions must be made within three years, except in the case of fraud or intent to evade the provision of law, in which case the limitation does not apply. ADD}
SECTION 3. This act shall take effect upon passage.
