Sec. 10. Applicability; status of individuals performing service.
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Sec. 10. Applicability; status of individuals performing service.
(a)For the purposes of this Act, an individual performing services for a contractor is deemed to be an employee of the employer except as provided in subsections
(b)and
(c)of this Section.
(b)An individual performing services for a contractor is deemed to be an employee of the contractor unless it is shown that:
(1)the individual has been and will continue to be free from control or direction over
the performance of the service for the contractor, both under the individual's contract of service and in fact;
(2)the service performed by the individual is outside the usual course of services
performed by the contractor; and
(3)the individual is engaged in an independently established trade, occupation,
profession or business; or
(4)the individual is deemed a legitimate sole proprietor or partnership under
subsection
(c)of this Section.
(c)The sole proprietor or partnership performing services for a contractor as a subcontractor is deemed legitimate if it is shown that:
(1)the sole proprietor or partnership is performing the service free from the direction
or control over the means and manner of providing the service, subject only to the right of the contractor for whom the service is provided to specify the desired result;
(2)the sole proprietor or partnership is not subject to cancellation or destruction
upon severance of the relationship with the contractor;
(3)the sole proprietor or partnership has a substantial investment of capital in the
sole proprietorship or partnership beyond ordinary tools and equipment and a personal vehicle;
(4)the sole proprietor or partnership owns the capital goods and gains the profits and
bears the losses of the sole proprietorship or partnership;
(5)the sole proprietor or partnership makes its services available to the general
public or the business community on a continuing basis;
(6)the sole proprietor or partnership includes services rendered on a Federal Income
Tax Schedule as an independent business or profession;
(7)the sole proprietor or partnership performs services for the contractor under the
sole proprietorship's or partnership's name;
(8)when the services being provided require a license or permit, the sole proprietor or
partnership obtains and pays for the license or permit in the sole proprietorship's or partnership's name;
(9)the sole proprietor or partnership furnishes the tools and equipment necessary to
provide the service;
(10)if necessary, the sole proprietor or partnership hires its own employees without
contractor approval, pays the employees without reimbursement from the contractor and reports the employees' income to the Internal Revenue Service;
(11)the contractor does not represent the sole proprietorship or partnership as an
employee of the contractor to its customers; and
(12)the sole proprietor or partnership has the right to perform similar services for
others on whatever basis and whenever it chooses.
(d)Where a sole proprietor or partnership performing services for a contractor as a subcontractor is deemed not legitimate under subsection
(c)of this Section, the sole proprietorship or partnership shall be deemed an individual for purposes of this Act.
(e)Subcontractors or lower tiered contractors are subject to all provisions of this Act.
(f)A contractor shall not be liable under this Act for any subcontractor's failure to properly classify persons performing services as employees, nor shall a subcontractor be liable for any lower tiered subcontractor's failure to properly classify persons performing services as employees.