1. A. The Commissioner may consider evidence, as provided in §B of this regulation, that an employer knowingly failed to properly classify an employee.

2. B. The evidence shall include the following:

   1. (1) Any previous violation of the Workplace Fraud Act or a violation of any other state or federal law that involves similar issues related to the classification of employees;
   2. (2) Refusal or failure of the employer to produce records requested pursuant to Labor and Employment Article, §3-905(d)(1), Annotated Code of Maryland;
   3. (3) Refusal or failure of the employer to cooperate with an investigation authorized under Labor and Employment Article, §3-905, Annotated Code of Maryland;
   4. (4) Evidence that the employer classifies differently individuals who perform substantially the same tasks, allowing for the business model described in Labor and Employment Article, §3-903(c)(3), Annotated Code of Maryland; and
   5. (5) Any other credible evidence of the employer's actual knowledge of, deliberate ignorance of, or reckless disregard for whether or not the worker is misclassified.

Authority: Labor and Employment Article, §§3-903(d), 3-904, 3-914, and 3-917, Annotated Code of Maryland

Effective date: November 2, 2009 (36:22 Md. R. 1723)

Regulation .05 adopted effective February 22, 2010 (37:4 Md. R. 340)

Regulation .06 adopted effective February 22, 2010 (37:4 Md. R. 340)