Measure twice, cut once. It’s a carpenter’s motto reminding us that it is better to spend a little more effort up front to be certain about what we’re doing than to have to spend time, money, and energy trying to fix a mistake after the fact. This article provides some background and basics of the Construction Workplace Misclassification Act (CWMA) so that attorneys practicing in the construction field will be aware of the pitfalls: should a construction employer seek to cut corners and avoid paying workers’ compensation premiums (and other required taxes), or even just err by calling its workers independent contractors, they may be subject to civil and even criminal penalties. It is better to take the time, do the due diligence and measure twice. This article will briefly explain the rationale for the CWMA’s enactment, address the previous legal approach, present the contours of the CWMA, and finally touch on Pennsylvania cases evaluating and applying the CWMA.

The CWMA (Construction Workplace Misclassification Act), 43 P.S. Secction  933.1-17, is a 2010 enactment (effective February 2011). In proposing the bill, the Pennsylvania House Labor Relations Committee sought to curb construction employers’ common practice, intentional or otherwise, of deeming workers to be independent contractors rather than employees. This approach not only put workers in dangerous jobs at risk, but burdened public coffers with lost revenue and compliant employers with the cost of workers’ compensation benefits and medical costs for uninsured employers who did not similarly prepare (or who intentionally chose to skate by).

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