Delaware Code Title 19 Sec. 3503 – Acts prohibited
(a) An employer must not act as a labor broker by improperly classifying an individual who performs work for remuneration provided by an employer as an independent contractor.
Terms Used In Delaware Code Title 19 Sec. 3503
- Construction services: includes , without limitation, all building or work on buildings, structures, and improvements of all types such as bridges, dams, plants, highways, parkways, streets, tunnels, sewers, mains, power lines, pumping stations, heaving generators, railways, airports, terminals, docks, piers, wharves, buoys, jetties, breakwaters, levees, canals, dredging, shoring, rehabilitation and reactivation of plants, scaffolding, drilling, blasting, excavating, clearing and landscaping. See Delaware Code Title 19 Sec. 3501
- Contract: A legal written agreement that becomes binding when signed.
- Contractor: means a person, partnership, association, joint stock company, trust, corporation, limited liability company, or other legal business entity or successor or subsidiary thereof that engages in construction services or maintenance under an express or implied contract on behalf of another entity or individual for profit within the State, and includes any subcontractor or lower tier subcontractor of a contractor. See Delaware Code Title 19 Sec. 3501
- Corporation: A legal entity owned by the holders of shares of stock that have been issued, and that can own, receive, and transfer property, and carry on business in its own name.
- Employee: means any person or entity directly hired by, or directly permitted to work by an employer in the State, for work to be performed wholly or partly therein. See Delaware Code Title 19 Sec. 3501
- Employer: means any individual, partnership, association, joint stock company, trust, corporation, the administrator or executor of the estate of a deceased individual or the receiver, trustee or successor of any of the same employing any person excepting those provided for in subsection (b) of this section. See Delaware Code Title 19 Sec. 3501
- Exempt person: means any individual who:
- Independent contractor: means an individual or entity who meets all of the following:
- Knowingly: means having actual knowledge of, or acting with deliberate ignorance, or reckless disregard for the prohibition involved. See Delaware Code Title 19 Sec. 3501
- Labor broker: means an entity or individual that hires employees and sells the services of the employees to another employer in need of temporary employees. See Delaware Code Title 19 Sec. 3501
- Partnership: A voluntary contract between two or more persons to pool some or all of their assets into a business, with the agreement that there will be a proportional sharing of profits and losses.
- Subcontractor: means a lower tier contractor of a contractor, including owner operators or independent contractors. See Delaware Code Title 19 Sec. 3501
(b) An employer has improperly classified an individual when an employer-employee relationship exists, as determined under subsection (c) of this section, but the employer has not classified the individual as an employee.
(c) (1) An “employer-employee” relationship is presumed to exist when work is performed by an individual for remuneration paid by an employer, unless the employer demonstrates, to the satisfaction of the Department, that the individual is an exempt person or independent contractor.
(2) By contract, a general contractor or subcontractor may engage an independent contractor registered under Chapter 36 of this title, to do the same type of work in which the general contractor or subcontractor engages, at the same location where the general contractor or subcontractor is working, without establishing an employer-employee relationship between the multiple contracting parties.
(3) There is a rebuttable presumption that an entity or individual who acts as a labor broker in providing construction services has engaged in a knowing violation of this chapter.
(d) A person must not knowingly incorporate or form, or assist in the incorporation or formation of, a corporation, partnership, limited liability corporation, or other entity, or pay or collect a fee for use of a foreign or domestic corporation, partnership, limited liability corporation, or other entity for the purpose of facilitating, or evading detection of, a violation under this section.
(e) A person must not knowingly conspire with, aid and abet, assist, advise, or facilitate an employer with the intent of violating the provisions of this chapter.
(f) The Department shall adopt regulations to further explain and provide specific examples of subsections (c), (d), and (e) of this section.
77 Del. Laws, c. 192, § ?1; 82 Del. Laws, c. 168, § 2; 82 Del. Laws, c. 291, § 2;