Jobs that were once performed by employees are now being outsourced to “independent contractors” (hereafter, ‘contractor’) more and more frequently. Consultants, temporary employment services and others now provide administrative, human resources, payroll, benefits, accounting, legal and a host of other services to companies, large and small. This trend is on the rise primarily because it is often more cost efficient to hire a contractor than to pay overhead costs for an employee.

In utilizing contractors, a business owner must be vigilant in adhering to the definition of and rules and regulations regarding that classification. Not to do so may bring on very negative legal implications for the organization. 

Aside from the possibility of legal actions or state agency investigations, companies, if challenged, must often convince an investigating agency such as the I.R.S., the Labor Department, or the Workers’ Compensation Board that the arrangement qualifies as that of independent contractor, not employee. The relationship can and has become the subject of increasing legal and agency scrutiny.

In the past, the I.R.S.’s list of “20 Common Law Factors Test” most often held sway in making determinations of this type.  Today, the I.R.S. uses three broad classifications to help clarify questions of this nature: behavioral control, financial control and relationship type. Today, no one single factor is THE determining criterion when a regulatory agency or court attempts to resolve a dispute regarding the nature of the relationship. Further, different entities such as the I.R.S., sections of Labor law, particularly the Fair Labor Standards Act, or Workers’ Compensation system may place more or less emphasis on any one or another element used to make the determination. What’s a business owner to do?

                We understand the intricacies of this issue and work with our clients to make the right choice and set proper parameters to ensure that the relationship maintains compliance with relevant rules and regulations.

February 21, 2009

Work violence comes in many forms

A Good Samaritan is shot and killed for trying to stop the violence against a woman being assaulted in a Brockport hospital parking lot.

A rookie Rochester Police Officer is gunned down as he walks away from a group of people he and his partner have just spoken to.

No one goes to work expecting to contend with violence, especially violence as brutal as the above. While murder is the most extreme form of violence, any workplace violence — bullying, swearing, intimidation — is unacceptable. Employees have the right to expect — and employers have the obligation to provide — a safe workplace.

While employers face Worker's Compensation filings in cases of workplace violence, legal liability is not the only potential consequence of failing to address warning signs of workplace violence.

Violence in the workplace takes an enormous emotional toll on co-workers, witnesses, supervisors and all who come in contact with the incident. Resulting tension leads to an atmosphere of fear, distrust and concern.

Just a few months ago, in Kentucky, an angry employee had a dispute with a supervisor, left the premises and returned with a gun to shoot and kill not only the supervisor but others. The man charged with last weekend's killing and wounding of five people in our community was allegedly a staff member who had been "let go." He later returned to his former job site and another location in a rampage of violence.

In the past, violence was employed as a strategy of last resort when people became angry. In today's society, violence often seems to be the first and final solution people choose to resolve differences of whatever magnitude.

New York now mandates that municipalities have "zero tolerance" violence prevention policies and prevention programs. Many have formulated policies but continue to struggle with implementation. Although private employers are not under the same mandate, we feel that they ignore developing such a policy at the risk of legal and ethical liability.

Sociologists present evidence of the direct correlation between economic hardship and increasing acts of violence. Anxiety over the current economic crisis is running high. This makes it even more important for employers to have a "zero tolerance for violence" policy that is implemented and conveyed to employees and written in employee handbooks.

This policy must be immediately, appropriately and consistently enforced to prevent workplace violence as defined in the broadest way.

Managers and employees should be thoroughly trained on how to recognize and contain workplace tension before conflict erupts.

A complete physical assessment of threats to the safety of the workforce is also necessary, with corrective action taken immediately to protect employees.

Written by Dolly Malik and Carol G. McManus, a former commissioner of the New York Workers' Compensation Board.