Just Who Is An Employee These Days?
Sacramento, CA (Law Firm Newswire) May 2, 2014 - The face of the workforce has changed drastically over the last two decades. Now, more people work from home as freelancers, consultants or other designations, such as independent contractors.
“Who is an employee these days? That’s a difficult question to answer, particularly in reference to legal issues. Indeed, determining who is and who is not a worker is getting more complex. This matters when something goes wrong, such as an independent contractor being fired with no notice, or someone takes maternity or paternity leave and when it is over, the worker no longer has a job, because they are not considered to be an employee. Situations like this can be minefields,” explains respected Sacramento business attorney, Deborah Barron.
Being a freelancer, independent contractor or consultant works for many American families with children or others that prefer to work for themselves. When they start down this path, they do not mind giving up some of the benefits of being employed by a company, such as health insurance or vacation pay. But when something goes off the rails, being an independent freelancer can leave someone feeling like they are between a rock and a hard place.
The courts have suggested that there is no conclusive test that may be applied across the board to figure out if someone is an employee or a freelancer. Instead, they focus on the working relationship as a whole to figure out if an individual was hired to perform services as an independent consultant, or not. Some of the signposts the courts look for are the level of control an employer has over a worker’s functions for them. “If, for instance, they only check into the ‘office’ once a week and work their own hours, the courts lean to calling that person a contractor,” says Barron.
Secondly, the courts want to know who is providing the equipment to allow the person to carry out their tasks. That may mean a phone, computer, printer and maybe a fax machine or photocopier. If a worker sits in a place of employment day-in, day-out, uses all company resources, and their workspace bears their name, this may be an “employee.” This is not an extensive airing of precisely what courts look for, but it does indicate that if the individual looks like an employee, puts in regular work hours, has company business cards and attends social events, chances are they are an employee – period.
“The courts also want to know if you hire your own assistants. They look for this because if you are free to hire anyone you like to help you perform certain tasks, that usually means you are an independent contractor, even if you may happen to have an office assigned to you,” Barron points out.
How much an employee is integrated into a client’s business, how responsible they are for managing and investing in their business, and how long they have worked at a location are also used as a measurement of whether or not an individual is a worker vs. an employee. “Determining who is an employee vs. an independent contractor is very much done on a case-by-case basis,” says Barron. “If you have issues with a situation you may be in, we are able to provide an objective assessment of any potential case you may have.”
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