(1) (a) "Employment", subject to other provisions of this subsection (1), includes any service performed prior to January 1, 1972, which was employment as defined in this subsection (1) prior to such date and service performed after December 31, 1971, by an employee as defined in section 3306 (i) of the "Federal Unemployment Tax Act" and any service performed after December 31, 1977, by an employee, as defined in subsection (o) of section 3306 of the "Federal Unemployment Tax Act", including service in interstate commerce.
Notwithstanding any other provision of this subsection (1) and notwithstanding theprovisions of section 8-80-101, service performed by an individual for another shall be deemed to be employment, irrespective of whether the common-law relationship of master and servant exists, unless and until it is shown to the satisfaction of the division that such individual is free from control and direction in the performance of the service, both under his contract for the performance of service and in fact; and such individual is customarily engaged in an independent trade, occupation, profession, or business related to the service performed. For purposes of this section, the degree of control exercised by the person for whom the service is performed over the performance of the service or over the individual performing the service, if exercised pursuant to the requirements of any state or federal statute or regulation, shall not be considered.
To evidence that such individual is engaged in an independent trade, occupation,profession, or business and is free from control and direction in the performance of the service, the individual and the person for whom services are performed may either show by a preponderance of the evidence that the conditions set forth in paragraph (b) of this subsection (1) have been satisfied, or they may demonstrate in a written document, signed by both parties, that the person for whom services are performed does not:
Require the individual to work exclusively for the person for whom services are performed; except that the individual may choose to work exclusively for the said person for a finite period of time specified in the document;
Establish a quality standard for the individual; except that such person can provideplans and specifications regarding the work but cannot oversee the actual work or instruct the individual as to how the work will be performed;
Pay a salary or hourly rate but rather a fixed or contract rate;
Terminate the work during the contract period unless the individual violates theterms of the contract or fails to produce a result that meets the specifications of the contract;
Provide more than minimal training for the individual;
Provide tools or benefits to the individual; except that materials and equipment maybe supplied;
Dictate the time of performance; except that a completion schedule and a range ofmutually agreeable work hours may be established;
Pay the individual personally but rather makes checks payable to the trade or business name of the individual; and
Combine his business operations in any way with the individual's business, butinstead maintains such operations as separate and distinct.
(d) A document may satisfy the requirements of paragraph (c) of this subsection (1) if such document demonstrates, by a preponderance of the evidence, the existence of such factors listed in subparagraphs (I) to (IX) of paragraph (c) of this subsection (1) as are appropriate to the parties' situation.
Where the parties use a written document pursuant to paragraph (c) of subsection (1) of this section, such document may be the contract for performance of service or a separate document. Such document shall create a rebuttable presumption of an independent contractor relationship between the parties, where such document contains a disclosure, in type which is larger than the other provisions in the document or in bold-faced or underlined type, that the independent contractor is not entitled to unemployment insurance benefits unless unemployment compensation coverage is provided by the independent contractor or some other entity, and that the independent contractor is obligated to pay federal and state income tax on any moneys paid pursuant to the contract relationship.
Where the parties use a written document pursuant to paragraph (c) of subsection (1) of this section, and one of the parties is a professional whose license to practice a particular occupation under the laws of the state of Colorado requires such professional to exercise a supervisory function with regard to an entire project, such supervisory role shall not affect such professional's status as part of the independent contractor relationship.
To improve the process of determining the classification of an individual for purposes of this section, including any audits performed pursuant to section 8-72-107, the department shall:
Develop guidance for employers on the factors specified in paragraph (c) of subsection (1) of this section;
Clarify the process by which an employer or individual may submit further information in response to a determination by the department and prior to an appeal;
Establish an individual to serve as a resource for employers by providing guidanceon:
The proper classification of workers;
Audit findings; and
Options for curing or appealing an audit;
Establish internal methods to improve the consistency among auditors; and
Establish an independent review of a portion of audit and appeal results at least twicea year to monitor trends and make improvements to the audit process.
Source: L. 90: Entire section added, p. 592, § 3, effective April 3; entire section R&RE, p. 1766, § 10, effective June 8. L. 91: Entire section amended, p. 1366, § 1, effective May 18; entire section amended, p. 1343, § 1, effective June 5. L. 2016: (4) added, (SB 16-179), ch. 275, p. 1138, § 2, effective August 10.
Editor's note: Amendments to this section by House Bill 91-1279 and Senate Bill 91238 were harmonized.
Cross references: For the legislative declaration in SB 16-179, see section 1 of chapter 275, Session Laws of Colorado 2016.