Pub. 3 2021 Issue 3

guidelines to assist members with proper classifications. Employees are occasionally misclassified as independent contractors. Most frequently, swap drivers are classified as independent contractors when they are actual employees: the NH workers’ compensation statute, RSA 281-A:2.VI (b)(1) defines an employee as “any person … who performs services for pay for an employer, is presumed to be an employee. This presumption may be rebutted by proof that an individual meets all of the following criteria: A. The person possesses or has applied for a federal employer identification number or social security number, or in the alternative, has agreed in writing to carry out the responsibilities imposed on employers under this chapter. B. The person has control and discretion over the means and manner of performance of the work, in that the result of the work, rather than the means or manner by which the work is performed, is the primary element bargained for by the employer. C. The person has control over the time when the work is performed, and the time of performance is not dictated by the employer. However, this shall not prohibit the employer from reaching an agreement with the person as to the completion schedule, range of work hours, and the maximum number of work hours to be provided by the person, and in the case of entertainment, the time such entertainment is to be presented. D. The person hires and pays the person’s assistants, if any, and to the extent, such assistants are employees, supervises the details of the assistants’ work. E. The person holds himself or herself out to be in business for himself or herself or is registered with the state as a business, and the person has continuing or recurring business liabilities or obligations. F. The person is responsible for satisfactory completion of work and may be held contractually responsible for failure to complete the work. G. The person is not required to work exclusively for the employer. If the individual does not meet all of these criteria, they will be considered an employee and must be classified in the appropriate payroll class. Please note that paying someone through 1099 does not necessarily make him or her an independent contractor. The NHADA WCT is happy to review revised payroll information at any time, but members should review their payroll every June and complete the self-audit if there has been a change. If you have any questions pertaining to self-audits, actual audits, or premiums, please contact Marianne Gourgiotis at 603-224-2369 or mgourgiotis@nhada.com. IF A MEMBER’S PAYROLL HAS CHANGED DUE TO NEW HIRES OR LAYOFFS, THEY SHOULD COMPLETE THE SELF-AUDIT TO ENSURE THAT THE PAYROLL INFORMATION USED TO CALCULATE THE PREMIUM IS ACCURATE. KEEPING PAYROLL INFORMATION UP-TO-DATE REDUCES THE CHANCE THAT ADDITIONAL PREMIUMS WILL BE DUE AT THE TIME OF THE ACTUAL AUDIT OR PREVENT OVERPAYMENT. SINCE 2011, ALL OVER-PAYMENTS ARE APPLIED TO FUTURE PREMIUMS RATHER THAN RETURNED TO THE MEMBER. N E W H A M P S H I R E 9