1     
DETERMINATION OF EMPLOYER STATUS AMENDMENTS

2     
2016 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Brian M. Greene

5     
Senate Sponsor: Jerry W. Stevenson

6     

7     LONG TITLE
8     General Description:
9          This bill modifies provisions related to insurance, labor, and employment security to
10     address the determination of who is an employer.
11     Highlighted Provisions:
12          This bill:
13          ▸     amends definition provisions;
14          ▸     addresses when a franchisor is considered an employer;
15          ▸     addresses federal executive branch rulings in determining whether two or more
16     persons are joint employers; and
17          ▸     makes technical changes.
18     Money Appropriated in this Bill:
19          None
20     Other Special Clauses:
21          None
22     Utah Code Sections Affected:
23     AMENDS:
24          31A-40-102, as enacted by Laws of Utah 2008, Chapter 318
25          34-20-2, as last amended by Laws of Utah 1997, Chapter 375
26          34-28-2, as last amended by Laws of Utah 2011, Chapter 413
27          34-40-102, as last amended by Laws of Utah 2003, Chapter 151
28          34A-2-103, as last amended by Laws of Utah 2014, Chapter 303
29          34A-5-102, as last amended by Laws of Utah 2015, Chapters 13 and 23
30          34A-6-103, as last amended by Laws of Utah 2013, Chapter 413
31          35A-4-203, as last amended by Laws of Utah 2003, Chapter 17
32     ENACTS:
33          31A-40-212, Utah Code Annotated 1953
34          34-20-14, Utah Code Annotated 1953
35     

36     Be it enacted by the Legislature of the state of Utah:
37          Section 1. Section 31A-40-102 is amended to read:
38          31A-40-102. Definitions.
39          As used in this chapter:
40          (1) (a) Except as provided in Subsection (1)(b), "administrative fee" means a fee
41     charged to a client by a professional employer organization for a professional employer service.
42          (b) "Administrative fee" does not include an amount or a fee received by a professional
43     employer organization that is:
44          (i) compensation of a covered employee;
45          (ii) a benefit for a covered employee;
46          (iii) a payroll-related tax;
47          (iv) an unemployment insurance contribution;
48          (v) withholding of compensation for a covered employee;
49          (vi) a workers' compensation premium; or
50          (vii) another assessment paid by a professional employer organization to or on behalf
51     of a covered employee under a professional employer agreement.
52          (2) "Assurance organization" means a person designated as an assurance organization
53     in accordance with Section 31A-40-303.
54          (3) "Client" means a person who enters into a professional employer agreement with a
55     professional employer organization.
56          (4) "Coemployer" means:
57          (a) a client; or
58          (b) a professional employer organization.
59          (5) "Coemployment relationship" means a relationship:
60          (a) that is intended to be ongoing rather than a temporary or project specific
61     relationship; and
62          (b) wherein the rights and obligations of an employer that arise out of an employment
63     relationship are allocated between coemployers pursuant to:
64          (i) a professional employer agreement; or
65          (ii) this chapter.
66          (6) Notwithstanding Section 31A-1-301, "controlling person" means a person who,
67     individually or acting in concert with one or more persons, owns, directly or indirectly, 10% or
68     more of the equity interest in a professional employer organization.
69          (7) "Covered employee" means an individual who has a coemployment relationship
70     with a client and a professional employer organization if the conditions of Section 31A-40-203
71     are met.
72          (8) [(a)] "Employment related economic incentive" means:
73          (a) (i) [(A)] a credit against or exemption from taxes due the state or a political
74     subdivision of the state; or
75          [(B)] (ii) an economic inducement, including a loan or a grant; and
76          [(ii)] (b) if the credit, exemption, or economic inducement described in Subsection
77     (8)(a)[(i)]:
78          [(A)] (i) is offered by the state or a political subdivision of the state; and
79          [(B)] (ii) has an eligibility requirement that relates in whole or in part to employment
80     including:
81          [(I)] (A) the number of employees; or
82          [(II)] (B) the nature of the employment.
83          (9) "Federal executive agency" means an executive agency, as defined in 5 U.S.C.
84     Sec.105, of the federal government.
85          (10) "Franchise" means the same as that term is defined in 16 C.F.R. Sec. 436.1.
86          (11) "Franchisee" means the same as that term is defined in 16 C.F.R. Sec. 436.1.
87          (12) "Franchisor" means the same as that term is defined in 16 C.F.R. Sec. 436.1.
88          [(9)] (13) "Guarantee" means to assume an obligation of another person if that person
89     fails to meet the obligation.
90          [(10)] (14) "Licensee" means a person licensed under this chapter.
91          [(11)] (15) "Professional employer agreement" means a written contract by and
92     between a client and a professional employer organization that provides for:
93          (a) the coemployment of a covered employee;
94          (b) with respect to a covered employee, the allocation of a right or obligation of an
95     employer between:
96          (i) the client; and
97          (ii) the professional employer organization; and
98          (c) the assumption of the obligations imposed by this chapter by:
99          (i) the client; or
100          (ii) the professional employer organization.
101          [(12)] (16) (a) Subject to Subsection [(12)] (16)(b), "professional employer
102     organization" means a person engaged in the business of providing a professional employer
103     service.
104          (b) "Professional employer organization" does not include:
105          (i) a person that:
106          (A) does not:
107          (I) have as a principal business activity the entering into of a professional employer
108     arrangement; or
109          (II) hold the person out as a professional employer organization; and
110          (B) shares an employee with a commonly owned company within the meaning of
111     Sections 414(b) and (c), Internal Revenue Code;
112          (ii) an independent contractor arrangement by which a person:
113          (A) assumes responsibility for the product produced or service performed by the person
114     or the person's agent; and
115          (B) retains and exercises primary direction and control over the work performed by an
116     individual whose service is supplied under the independent contractor arrangement; or
117          (iii) a person providing temporary help service.
118          [(13)] (17) "Professional employer organization group" means two or more
119     professional employer organizations that are majority owned or commonly controlled or
120     directed by the same one or more persons.
121          [(14)] (18) "Professional employer service" means the service of entering into a
122     coemployment relationship under this chapter under which all or a majority of the employees
123     who provide a service to a client, or a division or work unit of a client, are covered employees.
124          [(15)] (19) "Qualified actuary" means an individual who:
125          (a) is a member in good standing of a professional actuarial accreditation organization
126     designated by the department by rule;
127          (b) is qualified to sign a statement of actuarial opinion or annual statement for a
128     professional employer organization in accordance with the qualification standards for an
129     actuary signing an opinion or annual statement as provided by the professional actuarial
130     accreditation organization designated under Subsection [(15)] (19)(a);
131          (c) is familiar with the valuation requirements applicable to a professional employer
132     organization;
133          (d) has not been found by the commissioner, or if so found has subsequently been
134     reinstated as a qualified actuary, following appropriate notice and hearing to have:
135          (i) violated a provision of, or an obligation imposed by, statute or other law in the
136     course of the actuary's dealings as a qualified actuary;
137          (ii) been found guilty of a fraudulent or dishonest practice;
138          (iii) demonstrated the actuary's incompetency, lack of cooperation, or
139     untrustworthiness to act as a qualified actuary;
140          (iv) submitted to the commissioner during the past five years, pursuant to this rule, an
141     actuarial opinion or memorandum that the commissioner rejected because it did not meet the
142     provisions of rule; or
143          (v) resigned or been removed as an actuary within the past five years as a result of an
144     act or omission indicated in an adverse report on examination or as a result of failure to adhere
145     to a generally acceptable actuarial standard; and
146          (e) has not failed to notify the commissioner of an action taken by any commissioner of
147     another state similar to that under Subsection [(15)] (19)(d).
148          [(16)] (20) "Temporary help service" means a service consisting of a person:
149          (a) recruiting and hiring the person's own employee;
150          (b) finding another person that wants the services of that employee;
151          (c) assigning the employee to:
152          (i) perform services at or for the other person to support or supplement the other
153     person's employees;
154          (ii) provide assistance in a special work situation such as:
155          (A) an employee absence;
156          (B) a skill shortage; or
157          (C) a seasonal workload; or
158          (iii) perform a special assignment or project; and
159          (d) customarily reassigning the employee to another organization when the employee
160     finishes an assignment.
161          [(17)] (21) "Working capital" means the current assets minus the current liabilities of a
162     professional employer organization determined in accordance with generally accepted
163     accounting principles.
164          Section 2. Section 31A-40-212 is enacted to read:
165          31A-40-212. Determination of joint employers -- Franchisors excluded.
166          (1) (a) For purposes of determining whether two or more persons are considered joint
167     employers under this chapter, an administrative ruling of a federal executive agency may not be
168     considered a generally applicable law unless that administrative ruling is determined to be
169     generally applicable by a court of law, or adopted by statute or rule .
170          (b) Nothing in this Subsection (1) prohibits the commissioner, in making policy
171     decisions and taking enforcement action, from applying an administrative ruling or opinion
172     issued by the United States Department of Labor that decides or opines on whether an
173     employee welfare benefit plan is established and maintained for a single employer, multiple
174     employer, or co-employer under the Employee Retirement Income Security Act of 1974, 29
175     U.S.C. Sec. 1001 et seq.
176          (2) (a) For purposes of this chapter, a franchisor is not considered to be an employer of:
177          (i) a franchisee; or
178          (ii) a franchisee's employee.
179          (b) With respect to a specific claim for relief under this chapter made by a franchisee or
180     a franchisee's employee, this Subsection (2) does not apply to a franchisor under a franchise
181     that exercises a type or degree of control over the franchisee or the franchisee's employee not
182     customarily exercised by a franchisor for the purpose of protecting the franchisor's trademarks
183     and brand.
184          Section 3. Section 34-20-2 is amended to read:
185          34-20-2. Definitions.
186          As used in this chapter:
187          (1) "Affecting commerce" means in commerce, or burdening or obstructing commerce
188     or the free flow of commerce, or having led or tending to lead to a labor dispute burdening or
189     obstructing commerce or the free flow of commerce within the state.
190          (2) "Commerce" means trade, traffic, commerce, transportation, or communication
191     within the state.
192          (3) "Election" means a proceeding in which the employees in a collective bargaining
193     unit cast a secret ballot for collective bargaining representatives or for any other purpose
194     specified in this chapter and includes elections conducted by the board or by any tribunal
195     having competent jurisdiction or whose jurisdiction was accepted by the parties.
196          (4) (a) "Employee" includes any employee unless this chapter explicitly states
197     otherwise, and includes an individual whose work has ceased as a consequence of, or in
198     connection with, any current labor dispute or because of any unfair labor practice, and who has
199     not obtained any other regular and substantially equivalent employment.
200          (b) "Employee" does not include an individual employed as an agricultural laborer, or
201     in the domestic service of a family or person at his home, or an individual employed by his
202     parent or spouse.
203          (5) "Employer" includes a person acting in the interest of an employer, directly or
204     indirectly, but does not include:
205          (a) the United States;
206          (b) a state or political subdivision of a state;
207          (c) a person subject to the federal Railway Labor Act;
208          (d) a labor organization, other than when acting as an employer;
209          (e) a corporation or association operating a hospital if no part of the net earnings inures
210     to the benefit of any private shareholder or individual; or
211          (f) anyone acting in the capacity of officer or agent of a labor organization.
212          (6) "Federal executive agency" means an executive agency, as defined in 5 U.S.C.
213     Sec.105, of the federal government.
214          (7) "Franchise" means the same as that term is defined in 16 C.F.R. Sec. 436.1.
215          (8) "Franchisee" means the same as that term is defined in 16 C.F.R. Sec. 436.1.
216          (9) "Franchisor" means the same as that term is defined in 16 C.F.R. Sec. 436.1.
217          [(6)] (10) "Labor dispute" means any controversy between an employer and the
218     majority of [his] the employer's employees in a collective bargaining unit concerning the right
219     or process or details of collective bargaining or the designation of representatives.
220          [(7)] (11) "Labor organization" means an organization of any kind or any agency or
221     employee representation committee or plan in which employees participate that exists for the
222     purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes,
223     wages, rates of pay, hours of employment, or conditions of work.
224          [(8)] (12) "Labor relations board" or "board" means the board created in Section
225     34-20-3.
226          [(9)] (13) "Person" includes an individual, partnership, association, corporation, legal
227     representative, trustee, trustee in bankruptcy, or receiver.
228          [(10)] (14) "Representative" includes an individual or labor organization.
229          [(11)] (15) "Secondary boycott" includes combining or conspiring to cause or threaten
230     to cause injury to one with whom no labor dispute exists, whether by:
231          (a) withholding patronage, labor, or other beneficial business intercourse;
232          (b) picketing;
233          (c) refusing to handle, install, use, or work on particular materials, equipment, or
234     supplies; or
235          (d) by any other unlawful means, in order to bring him against his will into a concerted
236     plan to coerce or inflict damage upon another.
237          [(12)] (16) "Unfair labor practice" means any unfair labor practice listed in Section
238     34-20-8.
239          Section 4. Section 34-20-14 is enacted to read:
240          34-20-14. Determining joint employment status -- Franchisors excluded.
241          (1) For purposes of determining whether two or more persons are considered joint
242     employers under this chapter, an administrative ruling of a federal executive agency may not be
243     considered a generally applicable law unless that administrative ruling is determined to be
244     generally applicable by a court of law, or adopted by statute or rule .
245          (2) (a) For purposes of this chapter, a franchisor is not considered to be an employer of:
246          (i) a franchisee; or
247          (ii) a franchisee's employee.
248          (b) With respect to a specific claim for relief under this chapter made by a franchisee or
249     a franchisee's employee, this Subsection (2) does not apply to a franchisor under a franchise
250     that exercises a type or degree of control over the franchisee or the franchisee's employee not
251     customarily exercised by a franchisor for the purpose of protecting the franchisor's trademarks
252     and brand.
253          Section 5. Section 34-28-2 is amended to read:
254          34-28-2. Definitions -- Unincorporated entities -- Joint employers -- Franchisors.
255          (1) As used in this chapter:
256          (a) "Commission" means the Labor Commission.
257          (b) "Division" means the Division of Antidiscrimination and Labor.
258          (c) "Employer" includes every person, firm, partnership, association, corporation,
259     receiver or other officer of a court of this state, and any agent or officer of any of the
260     above-mentioned classes, employing any person in this state.
261          (d) "Federal executive agency" means an executive agency, as defined in 5 U.S.C. Sec.
262     105, of the federal government.
263          (e) "Franchise" means the same as that term is defined in 16 C.F.R. Sec. 436.1.
264          (f) "Franchisee" means the same as that term is defined in 16 C.F.R. Sec. 436.1.
265          (g) "Franchisor" means the same as that term is defined in 16 C.F.R. Sec. 436.1.
266          [(d)] (h) "Unincorporated entity" means an entity organized or doing business in the
267     state that is not:
268          (i) an individual;
269          (ii) a corporation; or
270          (iii) publicly traded.
271          [(e)] (i) "Wages" means the amounts due the employee for labor or services, whether
272     the amount is fixed or ascertained on a time, task, piece, commission basis or other method of
273     calculating such amount.
274          (2) (a) For purposes of this chapter, an unincorporated entity that is required to be
275     licensed under Title 58, Chapter 55, Utah Construction Trades Licensing Act, is presumed to
276     be the employer of each individual who, directly or indirectly, holds an ownership interest in
277     the unincorporated entity.
278          (b) Pursuant to rules made by the commission in accordance with Title 63G, Chapter 3,
279     Utah Administrative Rulemaking Act, an unincorporated entity may rebut the presumption
280     under Subsection (2)(a) for an individual by establishing by clear and convincing evidence that
281     the individual:
282          (i) is an active manager of the unincorporated entity;
283          (ii) directly or indirectly holds at least an 8% ownership interest in the unincorporated
284     entity; or
285          (iii) is not subject to supervision or control in the performance of work by:
286          (A) the unincorporated entity; or
287          (B) a person with whom the unincorporated entity contracts.
288          (c) As part of the rules made under Subsection (2)(b), the commission may define:
289          (i) "active manager";
290          (ii) "directly or indirectly holds at least an 8% ownership interest"; and
291          (iii) "subject to supervision or control in the performance of work."
292          (d) The commission by rule made in accordance with Title 63G, Chapter 3, Utah
293     Administrative Rulemaking Act, may establish a procedure, consistent with Section 34-28-7,
294     under which an unincorporated entity may seek approval of a mutual agreement to pay wages
295     on non-regular paydays.
296          (3) For purposes of determining whether two or more persons are considered joint
297     employers under this chapter, an administrative ruling of a federal executive agency may not be
298     considered a generally applicable law unless that administrative ruling is determined to be
299     generally applicable by a court of law, or adopted by statute or rule .
300          (4) (a) For purposes of this chapter, a franchisor is not considered to be an employer of:
301          (i) a franchisee; or
302          (ii) a franchisee's employee.
303          (b) With respect to a specific claim for relief under this chapter made by a franchisee or
304     a franchisee's employee, this Subsection (4) does not apply to a franchisor under a franchise
305     that exercises a type or degree of control over the franchisee or the franchisee's employee not
306     customarily exercised by a franchisor for the purpose of protecting the franchisor's trademarks
307     and brand.
308          Section 6. Section 34-40-102 is amended to read:
309          34-40-102. Definitions -- Joint employees -- Franchisors.
310          (1) [This] Subject to Subsection (3), this chapter and the terms used in it, including the
311     computation of wages, shall be interpreted consistently with [29 U.S.C. Sec. 201 et seq.,] the
312     Fair Labor Standards Act of 1938, 29 U.S.C. Sec. 201 et seq., as amended, to the extent that act
313     relates to the payment of a minimum wage.
314          (2) As used in this chapter:
315          (a) "Cash wage obligation" means an hourly wage that an employer pays a tipped
316     employee regardless of the tips or gratuities a tipped employee receives.
317          (b) "Commission" means the Labor Commission.
318          (c) "Division" means the Division of Antidiscrimination and Labor in the commission.
319          (d) "Federal executive agency" means an executive agency, as defined in 5 U.S.C. Sec.
320     105, of the federal government.
321          (e) "Franchise" means the same as that term is defined in 16 C.F.R. Sec. 436.1.
322          (f) "Franchisee" means the same as that term is defined in 16 C.F.R. Sec. 436.1.
323          (g) "Franchisor" means the same as that term is defined in 16 C.F.R. Sec. 436.1.
324          [(d)] (h) "Minimum wage" means the state minimum hourly wage for adult employees
325     as established under this chapter, unless the context clearly indicates otherwise.
326          [(e)] (i) "Tipped employee" means an employee who customarily and regularly receives
327     tips or gratuities.
328          (3) Notwithstanding Subsection (1), for purposes of determining whether two or more
329     persons are considered joint employers under this chapter, an administrative ruling of a federal
330     executive agency may not be considered a generally applicable law unless that administrative
331     ruling is determined to be generally applicable by a court of law, or adopted by statute or rule .
332          (4) (a) For purposes of this chapter, a franchisor is not considered to be an employer of:
333          (i) a franchisee; or
334          (ii) a franchisee's employee.
335          (b) With respect to a specific claim for relief under this chapter made by a franchisee or
336     a franchisee's employee, this Subsection (4) does not apply to a franchisor under a franchise
337     that exercises a type or degree of control over the franchisee or the franchisee's employee not
338     customarily exercised by a franchisor for the purpose of protecting the franchisor's trademarks
339     and brand.
340          Section 7. Section 34A-2-103 is amended to read:
341          34A-2-103. Employers enumerated and defined -- Regularly employed --
342     Statutory employers -- Exceptions.
343          (1) (a) The state, and each county, city, town, and school district in the state are
344     considered employers under this chapter and Chapter 3, Utah Occupational Disease Act.
345          (b) For the purposes of the exclusive remedy in this chapter and Chapter 3, Utah
346     Occupational Disease Act, prescribed in Sections 34A-2-105 and 34A-3-102, the state is
347     considered to be a single employer and includes any office, department, agency, authority,
348     commission, board, institution, hospital, college, university, or other instrumentality of the
349     state.
350          (2) (a) Except as provided in Subsection (4), each person, including each public utility
351     and each independent contractor, who regularly employs one or more workers or operatives in
352     the same business, or in or about the same establishment, under any contract of hire, express or
353     implied, oral or written, is considered an employer under this chapter and Chapter 3, Utah
354     Occupational Disease Act.
355          (b) As used in this Subsection (2):
356          (i) "Independent contractor" means any person engaged in the performance of any work
357     for another who, while so engaged, is:
358          (A) independent of the employer in all that pertains to the execution of the work;
359          (B) not subject to the routine rule or control of the employer;
360          (C) engaged only in the performance of a definite job or piece of work; and
361          (D) subordinate to the employer only in effecting a result in accordance with the
362     employer's design.
363          (ii) "Regularly" includes all employments in the usual course of the trade, business,
364     profession, or occupation of the employer, whether continuous throughout the year or for only a
365     portion of the year.
366          (3) (a) The client under a professional employer organization agreement regulated
367     under Title 31A, Chapter 40, Professional Employer Organization Licensing Act:
368          (i) is considered the employer of a covered employee; and
369          (ii) subject to Section 31A-40-209, shall secure workers' compensation benefits for a
370     covered employee by complying with Subsection 34A-2-201(1) or (2) and commission rules.
371          (b) The division shall promptly inform the Insurance Department if the division has
372     reason to believe that a professional employer organization is not in compliance with
373     Subsection 34A-2-201(1) or (2) and commission rules.
374          (4) A domestic employer who does not employ one employee or more than one
375     employee at least 40 hours per week is not considered an employer under this chapter and
376     Chapter 3, Utah Occupational Disease Act.
377          (5) (a) As used in this Subsection (5):
378          (i) (A) "agricultural employer" means a person who employs agricultural labor as
379     defined in Subsections 35A-4-206(1) and (2) and does not include employment as provided in
380     Subsection 35A-4-206(3); and
381          (B) notwithstanding Subsection (5)(a)(i)(A), only for purposes of determining who is a
382     member of the employer's immediate family under Subsection (5)(a)(ii), if the agricultural
383     employer is a corporation, partnership, or other business entity, "agricultural employer" means
384     an officer, director, or partner of the business entity;
385          (ii) "employer's immediate family" means:
386          (A) an agricultural employer's:
387          (I) spouse;
388          (II) grandparent;
389          (III) parent;
390          (IV) sibling;
391          (V) child;
392          (VI) grandchild;
393          (VII) nephew; or
394          (VIII) niece;
395          (B) a spouse of any person provided in Subsections (5)(a)(ii)(A)(II) through (VIII); or
396          (C) an individual who is similar to those listed in Subsection (5)(a)(ii)(A) or (B) as
397     defined by rules of the commission; and
398          (iii) "nonimmediate family" means a person who is not a member of the employer's
399     immediate family.
400          (b) For purposes of this chapter and Chapter 3, Utah Occupational Disease Act, an
401     agricultural employer is not considered an employer of a member of the employer's immediate
402     family.
403          (c) For purposes of this chapter and Chapter 3, Utah Occupational Disease Act, an
404     agricultural employer is not considered an employer of a nonimmediate family employee if:
405          (i) for the previous calendar year the agricultural employer's total annual payroll for all
406     nonimmediate family employees was less than $8,000; or
407          (ii) (A) for the previous calendar year the agricultural employer's total annual payroll
408     for all nonimmediate family employees was equal to or greater than $8,000 but less than
409     $50,000; and
410          (B) the agricultural employer maintains insurance that covers job-related injuries of the
411     employer's nonimmediate family employees in at least the following amounts:
412          (I) $300,000 liability insurance, as defined in Section 31A-1-301; and
413          (II) $5,000 for health care benefits similar to benefits under health care insurance as
414     defined in Section 31A-1-301.
415          (d) For purposes of this chapter and Chapter 3, Utah Occupational Disease Act, an
416     agricultural employer is considered an employer of a nonimmediate family employee if:
417          (i) for the previous calendar year the agricultural employer's total annual payroll for all
418     nonimmediate family employees is equal to or greater than $50,000; or
419          (ii) (A) for the previous year the agricultural employer's total payroll for nonimmediate
420     family employees was equal to or exceeds $8,000 but is less than $50,000; and
421          (B) the agricultural employer fails to maintain the insurance required under Subsection
422     (5)(c)(ii)(B).
423          (6) An employer of agricultural laborers or domestic servants who is not considered an
424     employer under this chapter and Chapter 3, Utah Occupational Disease Act, may come under
425     this chapter and Chapter 3, Utah Occupational Disease Act, by complying with:
426          (a) this chapter and Chapter 3, Utah Occupational Disease Act; and
427          (b) the rules of the commission.
428          (7) (a) (i) As used in this Subsection (7)(a), "employer" includes any of the following
429     persons that procures work to be done by a contractor notwithstanding whether or not the
430     person directly employs a person:
431          (A) a sole proprietorship;
432          (B) a corporation;
433          (C) a partnership;
434          (D) a limited liability company; or
435          (E) a person similar to one described in Subsections (7)(a)(i)(A) through (D).
436          (ii) If an employer procures any work to be done wholly or in part for the employer by
437     a contractor over whose work the employer retains supervision or control, and this work is a
438     part or process in the trade or business of the employer, the contractor, all persons employed by
439     the contractor, all subcontractors under the contractor, and all persons employed by any of
440     these subcontractors, are considered employees of the original employer for the purposes of
441     this chapter and Chapter 3, Utah Occupational Disease Act.
442          (b) Any person who is engaged in constructing, improving, repairing, or remodeling a
443     residence that the person owns or is in the process of acquiring as the person's personal
444     residence may not be considered an employee or employer solely by operation of Subsection
445     (7)(a).
446          (c) A partner in a partnership or an owner of a sole proprietorship is not considered an
447     employee under Subsection (7)(a) if the employer who procures work to be done by the
448     partnership or sole proprietorship obtains and relies on either:
449          (i) a valid certification of the partnership's or sole proprietorship's compliance with
450     Section 34A-2-201 indicating that the partnership or sole proprietorship secured the payment of
451     workers' compensation benefits pursuant to Section 34A-2-201; or
452          (ii) if a partnership or sole proprietorship with no employees other than a partner of the
453     partnership or owner of the sole proprietorship, a workers' compensation coverage waiver
454     issued pursuant to Part 10, Workers' Compensation Coverage Waivers Act, stating that:
455          (A) the partnership or sole proprietorship is customarily engaged in an independently
456     established trade, occupation, profession, or business; and
457          (B) the partner or owner personally waives the partner's or owner's entitlement to the
458     benefits of this chapter and Chapter 3, Utah Occupational Disease Act, in the operation of the
459     partnership or sole proprietorship.
460          (d) A director or officer of a corporation is not considered an employee under
461     Subsection (7)(a) if the director or officer is excluded from coverage under Subsection
462     34A-2-104(4).
463          (e) A contractor or subcontractor is not an employee of the employer under Subsection
464     (7)(a), if the employer who procures work to be done by the contractor or subcontractor obtains
465     and relies on either:
466          (i) a valid certification of the contractor's or subcontractor's compliance with Section
467     34A-2-201; or
468          (ii) if a partnership, corporation, or sole proprietorship with no employees other than a
469     partner of the partnership, officer of the corporation, or owner of the sole proprietorship, a
470     workers' compensation coverage waiver issued pursuant to Part 10, Workers' Compensation
471     Coverage Waivers Act, stating that:
472          (A) the partnership, corporation, or sole proprietorship is customarily engaged in an
473     independently established trade, occupation, profession, or business; and
474          (B) the partner, corporate officer, or owner personally waives the partner's, corporate
475     officer's, or owner's entitlement to the benefits of this chapter and Chapter 3, Utah
476     Occupational Disease Act, in the operation of the partnership's, corporation's, or sole
477     proprietorship's enterprise under a contract of hire for services.
478          (f) (i) For purposes of this Subsection (7)(f), "eligible employer" means a person who:
479          (A) is an employer; and
480          (B) procures work to be done wholly or in part for the employer by a contractor,
481     including:
482          (I) all persons employed by the contractor;
483          (II) all subcontractors under the contractor; and
484          (III) all persons employed by any of these subcontractors.
485          (ii) Notwithstanding the other provisions in this Subsection (7), if the conditions of
486     Subsection (7)(f)(iii) are met, an eligible employer is considered an employer for purposes of
487     Section 34A-2-105 of the contractor, subcontractor, and all persons employed by the contractor
488     or subcontractor described in Subsection (7)(f)(i)(B).
489          (iii) Subsection (7)(f)(ii) applies if the eligible employer:
490          (A) under Subsection (7)(a) is liable for and pays workers' compensation benefits as an
491     original employer under Subsection (7)(a) because the contractor or subcontractor fails to
492     comply with Section 34A-2-201;
493          (B) (I) secures the payment of workers' compensation benefits for the contractor or
494     subcontractor pursuant to Section 34A-2-201;
495          (II) procures work to be done that is part or process of the trade or business of the
496     eligible employer; and
497          (III) does the following with regard to a written workplace accident and injury
498     reduction program that meets the requirements of Subsection 34A-2-111(3)(d):
499          (Aa) adopts the workplace accident and injury reduction program;
500          (Bb) posts the workplace accident and injury reduction program at the work site at
501     which the eligible employer procures work; and
502          (Cc) enforces the workplace accident and injury reduction program according to the
503     terms of the workplace accident and injury reduction program; or
504          (C) (I) obtains and relies on:
505          (Aa) a valid certification described in Subsection (7)(c)(i) or (7)(e)(i);
506          (Bb) a workers' compensation coverage waiver described in Subsection (7)(c)(ii) or
507     (7)(e)(ii); or
508          (Cc) proof that a director or officer is excluded from coverage under Subsection
509     34A-2-104(4);
510          (II) is liable under Subsection (7)(a) for the payment of workers' compensation benefits
511     if the contractor or subcontractor fails to comply with Section 34A-2-201;
512          (III) procures work to be done that is part or process in the trade or business of the
513     eligible employer; and
514          (IV) does the following with regard to a written workplace accident and injury
515     reduction program that meets the requirements of Subsection 34A-2-111(3)(d):
516          (Aa) adopts the workplace accident and injury reduction program;
517          (Bb) posts the workplace accident and injury reduction program at the work site at
518     which the eligible employer procures work; and
519          (Cc) enforces the workplace accident and injury reduction program according to the
520     terms of the workplace accident and injury reduction program.
521          (8) (a) For purposes of this Subsection (8), "unincorporated entity" means an entity
522     organized or doing business in the state that is not:
523          (i) an individual;
524          (ii) a corporation; or
525          (iii) publicly traded.
526          (b) For purposes of this chapter and Chapter 3, Utah Occupational Disease Act, an
527     unincorporated entity that is required to be licensed under Title 58, Chapter 55, Utah
528     Construction Trades Licensing Act, is presumed to be the employer of each individual who
529     holds, directly or indirectly, an ownership interest in the unincorporated entity.
530     Notwithstanding Subsection (7)(c) and Subsection 34A-2-104(3), the unincorporated entity
531     shall provide the individual who holds the ownership interest workers' compensation coverage
532     under this chapter and Chapter 3, Utah Occupational Disease Act, unless the presumption is
533     rebutted under Subsection (8)(c).
534          (c) Pursuant to rules made by the commission in accordance with Title 63G, Chapter 3,
535     Utah Administrative Rulemaking Act, an unincorporated entity may rebut the presumption
536     under Subsection (8)(b) for an individual by establishing by clear and convincing evidence that
537     the individual:
538          (i) is an active manager of the unincorporated entity;
539          (ii) directly or indirectly holds at least an 8% ownership interest in the unincorporated
540     entity; or
541          (iii) is not subject to supervision or control in the performance of work by:
542          (A) the unincorporated entity; or
543          (B) a person with whom the unincorporated entity contracts.
544          (d) As part of the rules made under Subsection (8)(c), the commission may define:
545          (i) "active manager";
546          (ii) "directly or indirectly holds at least an 8% ownership interest"; and
547          (iii) "subject to supervision or control in the performance of work."
548          (9) (a) As used in this Subsection (9), "home and community based services" means
549     one or more of the following services provided to an individual with a disability or to the
550     individual's family that helps prevent the individual with a disability from being placed in a
551     more restrictive setting:
552          (i) respite care;
553          (ii) skilled nursing;
554          (iii) nursing assistant services;
555          (iv) home health aide services;
556          (v) personal care and attendant services;
557          (vi) other in-home care, such as support for the daily activities of the individual with a
558     disability;
559          (vii) specialized in-home training for the individual with a disability or a family
560     member of the individual with a disability;
561          (viii) specialized in-home support, coordination, and other supported living services;
562     and
563          (ix) other home and community based services unique to the individual with a
564     disability or the family of the individual with a disability that help prevent the individual with a
565     disability from being placed in a more restrictive setting.
566          (b) Notwithstanding Subsection (4) and subject to Subsection (9)(c), an individual with
567     a disability or designated representative of the individual with a disability is considered an
568     employer under this chapter and Chapter 3, Utah Occupational Disease Act, of an individual
569     who provides home and community based services if the individual with a disability or
570     designated representative of the individual with a disability:
571          (i) employs the individual to provide home and community based services for seven
572     hours per week or more; and
573          (ii) pays the individual providing the home and community based services from state or
574     federal money received by the individual with a disability or designated representative of the
575     individual with a disability to fund home and community based services, including through a
576     person designated by the Secretary of the Treasury in accordance with Section 3504, Internal
577     Revenue Code, as a fiduciary, agent, or other person who has the control, receipt, custody, or
578     disposal of, or pays the wages of, the individual providing the home and community based
579     services.
580          (c) The state and federal money received by an individual with a disability or
581     designated representative of an individual with a disability shall include the cost of the workers'
582     compensation coverage required by this Subsection (9) in addition to the money necessary to
583     fund the home and community based services that the individual with a disability or family of
584     the individual with a disability is eligible to receive so that the home and community based
585     services are not reduced in order to pay for the workers' compensation coverage required by
586     this Subsection (9).
587          (10) (a) For purposes of this Subsection (10), "federal executive agency" means an
588     executive agency, as defined in 5 U.S.C. Sec. 105, of the federal government.
589          (b) For purposes of determining whether two or more persons are considered joint
590     employers under this chapter or Chapter 3, Utah Occupational Disease Act, an administrative
591     ruling of a federal executive agency may not be considered a generally applicable law unless
592     that administrative ruling is determined to be generally applicable by a court of law, or adopted
593     by statute or rule .
594          (11) (a) As used in this Subsection (11):
595          (i) "Franchise" means the same as that term is defined in 16 C.F.R. Sec. 436.1.
596          (ii) "Franchisee" means the same as that term is defined in 16 C.F.R. Sec. 436.1.
597          (iii) "Franchisor" means the same as that term is defined in 16 C.F.R. Sec. 436.1.
598          (b) For purposes of this chapter, a franchisor is not considered to be an employer of:
599          (i) a franchisee; or
600          (ii) a franchisee's employee.
601          (c) With respect to a specific claim for relief under this chapter made by a franchisee or
602     a franchisee's employee, this Subsection (11) does not apply to a franchisor under a franchise
603     that exercises a type or degree of control over the franchisee or the franchisee's employee not
604     customarily exercised by a franchisor for the purpose of protecting the franchisor's trademarks
605     and brand.
606          Section 8. Section 34A-5-102 is amended to read:
607          34A-5-102. Definitions -- Unincorporated entities -- Joint employers --
608     Franchisors.
609          (1) As used in this chapter:
610          (a) "Affiliate" means the same as that term is defined in Section 16-6a-102.
611          (b) "Apprenticeship" means a program for the training of apprentices including a
612     program providing the training of those persons defined as apprentices by Section 35A-6-102.
613          (c) "Bona fide occupational qualification" means a characteristic applying to an
614     employee that:
615          (i) is necessary to the operation; or
616          (ii) is the essence of the employee's employer's business.
617          (d) "Court" means:
618          (i) the district court in the judicial district of the state in which the asserted unfair
619     employment practice occurs; or
620          (ii) if the district court is not in session at that time, a judge of the court described in
621     Subsection (1)(d)(i).
622          (e) "Director" means the director of the division.
623          (f) "Disability" means a physical or mental disability as defined and covered by the
624     Americans with Disabilities Act of 1990, 42 U.S.C. Sec. 12102.
625          (g) "Division" means the Division of Antidiscrimination and Labor.
626          (h) "Employee" means a person applying with or employed by an employer.
627          (i) (i) "Employer" means:
628          (A) the state;
629          (B) a political subdivision;
630          (C) a board, commission, department, institution, school district, trust, or agent of the
631     state or a political subdivision of the state; or
632          (D) a person employing 15 or more employees within the state for each working day in
633     each of 20 calendar weeks or more in the current or preceding calendar year.
634          (ii) "Employer" does not include:
635          (A) a religious organization, a religious corporation sole, a religious association, a
636     religious society, a religious educational institution, or a religious leader, when that individual
637     is acting in the capacity of a religious leader;
638          (B) any corporation or association constituting an affiliate, a wholly owned subsidiary,
639     or an agency of any religious organization, religious corporation sole, religious association, or
640     religious society; or
641          (C) the Boy Scouts of America or its councils, chapters, or subsidiaries.
642          (j) "Employment agency" means a person:
643          (i) undertaking to procure employees or opportunities to work for any other person; or
644          (ii) holding the person out to be equipped to take an action described in Subsection
645     (1)(j)(i).
646          (k) "Federal executive agency" means an executive agency, as defined in 5 U.S.C. Sec.
647     105, of the federal government.
648          (l) "Franchise" means the same as that term is defined in 16 C.F.R. Sec. 436.1.
649          (m) "Franchisee" means the same as that term is defined in 16 C.F.R. Sec. 436.1.
650          (n) "Franchisor" means the same as that term is defined in 16 C.F.R. Sec. 436.1.
651          [(k)] (o) "Gender identity" has the meaning provided in the Diagnostic and Statistical
652     Manual (DSM-5). A person's gender identity can be shown by providing evidence, including,
653     but not limited to, medical history, care or treatment of the gender identity, consistent and
654     uniform assertion of the gender identity, or other evidence that the gender identity is sincerely
655     held, part of a person's core identity, and not being asserted for an improper purpose.
656          [(l)] (p) "Joint apprenticeship committee" means an association of representatives of a
657     labor organization and an employer providing, coordinating, or controlling an apprentice
658     training program.
659          [(m)] (q) "Labor organization" means an organization that exists for the purpose in
660     whole or in part of:
661          (i) collective bargaining;
662          (ii) dealing with employers concerning grievances, terms or conditions of employment;
663     or
664          (iii) other mutual aid or protection in connection with employment.
665          [(n)] (r) "National origin" means the place of birth, domicile, or residence of an
666     individual or of an individual's ancestors.
667          [(o)] (s) "On-the-job-training" means a program designed to instruct a person who,
668     while learning the particular job for which the person is receiving instruction:
669          (i) is also employed at that job; or
670          (ii) may be employed by the employer conducting the program during the course of the
671     program, or when the program is completed.
672          [(p)] (t) "Person" means:
673          (i) one or more individuals, partnerships, associations, corporations, legal
674     representatives, trusts or trustees, or receivers;
675          (ii) the state; and
676          (iii) a political subdivision of the state.
677          [(q)] (u) "Pregnancy, childbirth, or pregnancy-related conditions" includes
678     breastfeeding or medical conditions related to breastfeeding.
679          [(r)] (v) "Presiding officer" means the same as that term is defined in Section
680     63G-4-103.
681          [(s)] (w) "Prohibited employment practice" means a practice specified as
682     discriminatory, and therefore unlawful, in Section 34A-5-106.
683          [(t)] (x) "Religious leader" means an individual who is associated with, and is an
684     authorized representative of, a religious organization or association or a religious corporation
685     sole, including a member of clergy, a minister, a pastor, a priest, a rabbi, an imam, or a spiritual
686     advisor.
687          [(u)] (y) "Retaliate" means the taking of adverse action by an employer, employment
688     agency, labor organization, apprenticeship program, on-the-job training program, or vocational
689     school against one of its employees, applicants, or members because the employee, applicant,
690     or member:
691          (i) opposes an employment practice prohibited under this chapter; or
692          (ii) files charges, testifies, assists, or participates in any way in a proceeding,
693     investigation, or hearing under this chapter.
694          [(v)] (z) "Sexual orientation" means an individual's actual or perceived orientation as
695     heterosexual, homosexual, or bisexual.
696          [(w)] (aa) "Unincorporated entity" means an entity organized or doing business in the
697     state that is not:
698          (i) an individual;
699          (ii) a corporation; or
700          (iii) publicly traded.
701          [(x)] (bb) "Vocational school" means a school or institution conducting a course of
702     instruction, training, or retraining to prepare individuals to follow an occupation or trade, or to
703     pursue a manual, technical, industrial, business, commercial, office, personal services, or other
704     nonprofessional occupations.
705          (2) (a) For purposes of this chapter, an unincorporated entity that is required to be
706     licensed under Title 58, Chapter 55, Utah Construction Trades Licensing Act, is presumed to
707     be the employer of each individual who, directly or indirectly, holds an ownership interest in
708     the unincorporated entity.
709          (b) Pursuant to rules made by the commission in accordance with Title 63G, Chapter 3,
710     Utah Administrative Rulemaking Act, an unincorporated entity may rebut the presumption
711     under Subsection (2)(a) for an individual by establishing by clear and convincing evidence that
712     the individual:
713          (i) is an active manager of the unincorporated entity;
714          (ii) directly or indirectly holds at least an 8% ownership interest in the unincorporated
715     entity; or
716          (iii) is not subject to supervision or control in the performance of work by:
717          (A) the unincorporated entity; or
718          (B) a person with whom the unincorporated entity contracts.
719          (c) As part of the rules made under Subsection (2)(b), the commission may define:
720          (i) "active manager";
721          (ii) "directly or indirectly holds at least an 8% ownership interest"; and
722          (iii) "subject to supervision or control in the performance of work."
723          (3) For purposes of determining whether two or more persons are considered joint
724     employers under this chapter, an administrative ruling of a federal executive agency may not be
725     considered a generally applicable law unless that administrative ruling is determined to be
726     generally applicable by a court of law, or adopted by statute or rule .
727          (4) (a) For purposes of this chapter, a franchisor is not considered to be an employer of:
728          (i) a franchisee; or
729          (ii) a franchisee's employee.
730          (b) With respect to a specific claim for relief under this chapter made by a franchisee or
731     a franchisee's employee, this Subsection (4) does not apply to a franchisor under a franchise
732     that exercises a type or degree of control over the franchisee or the franchisee's employee not
733     customarily exercised by a franchisor for the purpose of protecting the franchisor's trademarks
734     and brand.
735          Section 9. Section 34A-6-103 is amended to read:
736          34A-6-103. Definitions -- Unincorporated entities -- Joint employers --
737     Franchisors.
738          (1) As used in this chapter:
739          (a) "Administrator" means the director of the Division of Occupational Safety and
740     Health.
741          (b) "Amendment" means such modification or change in a code, standard, rule, or
742     order intended for universal or general application.
743          (c) "Commission" means the Labor Commission.
744          (d) "Division" means the Division of Occupational Safety and Health.
745          (e) "Employee" includes any person suffered or permitted to work by an employer.
746          (f) "Employer" means:
747          (i) the state;
748          (ii) a county, city, town, and school district in the state; and
749          (iii) a person, including a public utility, having one or more workers or operatives
750     regularly employed in the same business, or in or about the same establishment, under any
751     contract of hire.
752          (g) "Federal executive agency" means an executive agency, as defined in 5 U.S.C. Sec.
753     105, of the federal government.
754          (h) "Franchise" means the same as that term is defined in 16 C.F.R. Sec. 436.1.
755          (i) "Franchisee" means the same as that term is defined in 16 C.F.R. Sec. 436.1.
756          (j) "Franchisor" means the same as that term is defined in 16 C.F.R. Sec. 436.1.
757          [(g)] (k) "Hearing" means a proceeding conducted by the commission.
758          [(h)] (l) "Imminent danger" means a danger exists which reasonably could be expected
759     to cause an occupational disease, death, or serious physical harm immediately, or before the
760     danger could be eliminated through enforcement procedures under this chapter.
761          [(i)] (m) "National consensus standard" means any occupational safety and health
762     standard or modification:
763          (i) adopted by a nationally recognized standards-producing organization under
764     procedures where it can be determined by the administrator and division that persons interested
765     and affected by the standard have reached substantial agreement on its adoption;
766          (ii) formulated in a manner which affords an opportunity for diverse views to be
767     considered; and
768          (iii) designated as such a standard by the secretary of the United States Department of
769     Labor.
770          [(j)] (n) "Person" means the general public, one or more individuals, partnerships,
771     associations, corporations, legal representatives, trustees, receivers, and the state and its
772     political subdivisions.
773          [(k)] (o) "Publish" means publication in accordance with Title 63G, Chapter 3, Utah
774     Administrative Rulemaking Act.
775          [(l)] (p) "Secretary" means the secretary of the United States Department of Labor.
776          [(m)] (q) "Standard" means an occupational health and safety standard or group of
777     standards which requires conditions, or the adoption or use of one or more practices, means,
778     methods, operations, or processes, reasonably necessary to provide safety and healthful
779     employment and places of employment.
780          [(n)] (r) "Unincorporated entity" means an entity organized or doing business in the
781     state that is not:
782          (i) an individual;
783          (ii) a corporation; or
784          (iii) publicly traded.
785          [(o)] (s) "Variance" means a special, limited modification or change in the code or
786     standard applicable to the particular establishment of the employer or person petitioning for the
787     modification or change.
788          [(p)] (t) "Workplace" means any place of employment.
789          (2) (a) For purposes of this chapter, an unincorporated entity that is required to be
790     licensed under Title 58, Chapter 55, Utah Construction Trades Licensing Act, is presumed to
791     be the employer of each individual who, directly or indirectly, holds an ownership interest in
792     the unincorporated entity.
793          (b) Pursuant to rules made by the commission in accordance with Title 63G, Chapter 3,
794     Utah Administrative Rulemaking Act, an unincorporated entity may rebut the presumption
795     under Subsection (2)(a) for an individual by establishing by clear and convincing evidence that
796     the individual:
797          (i) is an active manager of the unincorporated entity;
798          (ii) directly or indirectly holds at least an 8% ownership interest in the unincorporated
799     entity; or
800          (iii) is not subject to supervision or control in the performance of work by:
801          (A) the unincorporated entity; or
802          (B) a person with whom the unincorporated entity contracts.
803          (c) As part of the rules made under Subsection (2)(b), the commission may define:
804          (i) "active manager";
805          (ii) "directly or indirectly holds at least an 8% ownership interest"; and
806          (iii) "subject to supervision or control in the performance of work."
807          (3) For purposes of determining whether two or more persons are considered joint
808     employers under this chapter, an administrative ruling of a federal executive agency may not be
809     considered a generally applicable law unless that administrative ruling is determined to be
810     generally applicable by a court of law, or adopted by statute or rule .
811          (4) (a) For purposes of this chapter, a franchisor is not considered to be an employer of:
812          (i) a franchisee; or
813          (ii) a franchisee's employee.
814          (b) With respect to a specific claim for relief under this chapter made by a franchisee or
815     a franchisee's employee, this Subsection (4) does not apply to a franchisor under a franchise
816     that exercises a type or degree of control over the franchisee or the franchisee's employee not
817     customarily exercised by a franchisor for the purpose of protecting the franchisor's trademarks
818     and brand.
819          Section 10. Section 35A-4-203 is amended to read:
820          35A-4-203. Definition of employer -- Joint employers -- Franchisors.
821          (1) As used in this chapter "employer" means:
822          [(1)] (a) an individual or employing unit which employs one or more individuals for
823     some portion of a day during a calendar year, or that, as a condition for approval of this chapter
824     for full tax credit against the tax imposed by the Federal Unemployment Tax Act, is required,
825     under the act, to be an employer;
826          [(2)] (b) an employing unit that, having become an employer under Subsection (1)(a),
827     has not, under Sections 35A-4-303 and 35A-4-310, ceased to be an employer subject to this
828     chapter; or
829          [(3)] (c) for the effective period of its election under Subsection 35A-4-310(3), an
830     employing unit that has elected to become fully subject to this chapter.
831          (2) (a) For purposes of this Subsection (2), "federal executive agency" means an
832     executive agency, as defined in 5 U.S.C. Sec. 105, of the federal government.
833          (b) For purposes of determining whether two or more persons are considered joint
834     employers under this chapter, an administrative ruling of a federal executive agency may not be
835     considered a generally applicable law unless that administrative ruling is determined to be
836     generally applicable by a court of law, or adopted by statute or rule .
837          (3) (a) As used in this Subsection (3):
838          (i) "Franchise" means the same as that term is defined in 16 C.F.R. Sec. 436.1.
839          (ii) "Franchisee" means the same as that term is defined in 16 C.F.R. Sec. 436.1.
840          (iii) "Franchisor" means the same as that term is defined in 16 C.F.R. Sec. 436.1.
841          (b) For purposes of this chapter, a franchisor is not considered to be an employer of:
842          (i) a franchisee; or
843          (ii) a franchisee's employee.
844          (c) With respect to a specific claim for relief under this chapter made by a franchisee or
845     a franchisee's employee, this Subsection (3) does not apply to a franchisor under a franchise
846     that exercises a type or degree of control over the franchisee or the franchisee's employee not
847     customarily exercised by a franchisor for the purpose of protecting the franchisor's trademarks
848     and brand.