09.12.40.04

.04 Evidence of a Knowing Violation.

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

B. The evidence shall include the following:

(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) 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) Refusal or failure of the employer to cooperate with an investigation authorized under Labor and Employment Article, §3-905, Annotated Code of Maryland;

(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) 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.