Hiring and the Law —Independent Contractor or Employee?

Devora L. Lindeman, Esq., Partner at Greenwald Doherty LLP, is providing us with insight and information regarding the hiring process. Ms. Lindeman is a management-side employment lawyer and has exclusively represented managers and companies in federal and state agencies and courts with regard to their labor and employment needs for many years.

Questions addressed to Ms. Lindeman may be addressed in this column.

Hiring and the Law
By Devora L. Lindeman, Esq.*

Question:  I’m hiring a bookkeeper to clean up my accounts so my accountant can do our taxes.  Can I retain her as an independent contractor or does she have to be an employee?

Answer:  To answer your question let me review your options—when you bring on someone to help you they can fit into one of a number of categories.  First is the one you identified—is the person an employee or an independent contractor?  However, there are also different types of employees and understanding what those are can also help to answer that question.

One type of employee is what’s called a “regular employee.”  Sometimes companies incorrectly call this a “permanent employee.”  A “regular employee” is one who is hired for no particular period of time, but is expected to remain employed as long as they want to be there, and as long as the employer wants to retain them.  A regular employee can be full-time or part-time.  There’s no legal definition of what is considered “full time.”  Rather, that’s something that is set by the company.  Usually, companies provide benefits for “full time” employees that are not provided for “part-time” employees.  When defining employees as full or part time, however, make sure that the definitions of these classifications work together.  For example, don’t define “full time” as someone who is regularly scheduled to work over 35 hours a week, and “part time” as someone who is regularly scheduled to work less than 20.  What happens if you hire someone who is regularly scheduled for 30 hours/week.  Are they full time or part time?

If an employee is not a “regular employee,” he or she is likely a “temporary employee” – or a temp.  Temps can be hired through a temp agency, or can be hired directly by your company.  Temps are usually brought on for a project, or to cover for an employee who is out on disability leave.  In other words, you have an idea how long they will be there, and they are not expected to remain beyond the end of the project.  Temps can be “full time” or “part time” and, as long as they are properly defined as such in your employee handbook, Temps don’t usually need to be provided with company benefits, either.

So let’s look back on the bookkeeper question—she’s there to clean up accounts so the accountant can do the taxes.  That seems like a relatively short term project, but it is not clear whether there are other projects after that one is done.  If not, this sounds like a temporary situation.  Therefore, we can rule out “regular employee” as a possible classification, leaving “temporary employee” or “independent contractor.”  If the bookkeeper has a business and hires out to various companies to do bookkeeping projects, it is possible she could be an independent contractor.  However, if she’s an individual who you will expect to be in your office Monday through Friday, 9: – 5: until the project is done, it is possible that she’s a temporary employee and not a contractor.  The difference between the two has to do with who controls the manner and method of work, how much supervision is provided, and other factors—including whether she is paid on a W-2 or 1099 basis, but that is far from the determining factor.  In short, I don’t have enough information to tell whether the bookkeeper is your temporary employee or your independent contractor, but it is very important for you to ask this question and get it resolved with your employment lawyer before bringing this person on board.


*Ms. Lindeman is a Partner at Greenwald Doherty LLP, a law firm that exclusively represents businesses in all aspects of labor and employment law.  These columns are intended to be general information regarding the topic discussed and are not to be considered legal advice regarding a specific situation. Contact a management-side employment attorney familiar with the law of your jurisdiction for specific advice.  Ms. Lindeman is admitted to practice law in NY and NJ and may be contacted at DL@greenwaldllp.com.  She is under no obligation to respond to reader inquiries personally, but may answer general employment law questions through this column.

© 2011 Greenwald Doherty.  May not be reprinted without permission.

An Ethical Workplace Attracts Ethical Staff

This next tip may come across as a bit mystical to some, but let’s see what you think.

if your current workplace operates at a high ethics level, you will be more likely to attract new staff who also have a very strong sense of ethics.

Exploring this a bit, have you ever entered a restaurant that was very dirty, the staff were rude and the food was much less than desired? Well, this restaurant often attracts a certain type of customer.

On the flip side, have you been to a very classy place where the food and service were extremely upscale and every attention to detail had been observed? Who frequents a place like this?

Yes, I realize those two examples are somewhat simplistic, but they do serve a point here. The quality of life in a given location will attract a similar quality of life to it.

Therefore, if your current staff are hard-working, caring and ethical, it will be easier to bring more of the same on board.

What if your current staff are not in possession of those fine qualities?

If you’re reading (or listening) to this newsletter and you haven’t yet subscribed to it, head on over to 4HiringTips.com and get a free subscription. A 76 page eBook is also provided with your subscription, and this eBook will help you create a more ethical staff.

I also recommend checking out ImprovingStaffEthics.com. This page describes a program used by thousands of companies to improve staff performance and ethics.

There’s another point worth making: If someone comes on board with a lower sense of ethics than your current scene, your existing staff may be able to improve that person’s approach. A group with high ethical standards has the potential to bring up another person’s standards. Of course, no guarantees here.

And if the new recruit walks into a workplace engaged in activities the new recruit would consider unethical, this new person might leave or worse, may even reduce their ethics standards to fit in. In this case, the group’s standards were capable of lowering another person’s approach.

All in all, the quality of your current workplace will often attract similar new staff to it.

Hiring and the Law —Withdrawing a Job Offer

Devora L. Lindeman, Esq., Partner at Greenwald Doherty LLP, is providing us with insight and information regarding the hiring process. Ms. Lindeman is a management-side employment lawyer and has exclusively represented managers and companies in federal and state agencies and courts with regard to their labor and employment needs for many years.

Questions addressed to Ms. Lindeman may be addressed in this column.

Hiring and the Law
By Devora L. Lindeman, Esq.*

Question:  I hired an applicant for a special product launch who just told me she’s pregnant and her child is due right at the start of the key weeks of the product launch.  Can I withdraw the job offer?

Answer:  As with most things regarding employment law – maybe.  The answer is not so black and white.  On the one hand, employers can certainly require employees to be there for the project for which they were hired.  On the other, employers cannot take any actions against employees (like rescind job offers) because of an employee’s or applicant’s pregnancy.

U.S. federal law considers pregnancy (like race, religion, national origin, age etc.), to be a “protected category” which cannot be the basis for an employment decision.  Many U.S. states, and even some localities, have their own laws that prohibit employers from making decisions because an employee or applicant is pregnant.

As is the case with qualified employees or applicants who are disabled, the law also requires employers to provide reasonable accommodations to employees who are pregnant to allow them to do their job.  And such accommodations could include the provision of authorized time to be absent.

In this case, however, it appears that the employee’s absence would be right during the key time for which she was hired.  Thus, it may not be her pregnancy that is the problem–it seems to be her absence.  You need to first consider whether you would have the same reaction if the applicant told you she was going to be absent for a non-pregnancy related reason.  For example, if she told you after being hired that she was getting married and had tickets and hotel reservations for a 4-week honeymoon; or that it was her parents’ 50th anniversary and they had already bought cruise tickets for all their children during that time; or that her son was in a baseball tournament, and the key games were out of town during those weeks and she was planning on being there for her son.

Even if each of these situations would have you as angry and frustrated as learning that your selected applicant was due to give birth during your product launch, there’s still another step that it likely would be prudent for you to take.  The reason for this is that not only can an employment decision not actually be due to the fact that an employee/applicant is pregnant, but it also must not appear to be due to the pregnancy.  Thus, any action taken close in time to finding out an applicant is pregnant will look like it was due to the pregnancy–even if it was not.

Therefore, it is advisable to take steps to see whether it is reasonable to provide an accommodation in this situation.  For example, are the key actions really being done during the time the employee is due to deliver, or can she set things up ahead of time? Does she need to physically be there, or can actions be done remotely? Is she willing to work remotely while on maternity leave?  How much leave is she seeking? How long is she planning on working?  How likely is it that your launch will actually take place during the targeted dates?

It may be that after you gather all the information you determine that there simply is no reasonable accommodation that can be provided and that you need someone on the ground, 12 hours a day, up until and during the launch.  However, if you take the time to ask the questions and have a conversation with your applicant (and if you then document everything done), you will be in a better position to demonstrate that the decision to rescind the offer had nothing to do with the fact that she was pregnant.

It also may make a difference whether the applicant gave up anything (such as another job offer), or incurred any monetary obligations (such as moved from a different city; rented an apartment etc.) in order to take this job.  The state laws vary on what your company’s obligations may be when an applicant takes such actions in reliance on your job offer.

*Ms. Lindeman is a Partner at Greenwald Doherty LLP, a law firm that exclusively represents businesses in all aspects of labor and employment law.  These columns are intended to be general information regarding the topic discussed and are not to be considered legal advice regarding a specific situation. Contact a management-side employment attorney familiar with the law of your jurisdiction for specific advice.  Ms. Lindeman is admitted to practice law in NY and NJ and may be contacted at DL@greenwaldllp.com.  She is under no obligation to respond to reader inquiries personally, but may answer general employment law questions through this column.

© 2011 Greenwald Doherty.  May not be reprinted without permission.

Hiring and the Law —Setting Expectations for New Employees

Devora L. Lindeman, Esq., Partner at Greenwald Doherty LLP, is providing us with insight and information regarding the hiring process. Ms. Lindeman is a management-side employment lawyer and has exclusively represented managers and companies in federal and state agencies and courts with regard to their labor and employment needs for many years.

Questions addressed to Ms. Lindeman may be addressed in this column.

Hiring and the Law
By Devora L. Lindeman, Esq.*

Question: I’ve got a great candidate.  How do I let her know from the start what I expect?

Answer: It’s important to keep in mind that new employees can only meet your expectations if you let the new hire know what they are.  Expectations are set for new employees in a number of ways.  As lawyers, we like to see this done so that when employees are let go for not meeting expectations and then try to claim the termination was wrongful or discriminatory, the employer can prove that the employee was (a) advised of the expectations; (b) corrected when expectations were not met; and (c) failed to meet the expectations despite correction and counseling.  Here are some steps employers can take at the outset to set employee expectations:

  • Make things clear in the job interview.  For example, ask questions along the lines of:  “while I understand emergencies happen, is there any reason you would not be able to be at your desk ready to answer the phones every day at 9:00 am?” Do not ask whether they have reliable transportation, how far away they live, or whether they have to take children to day care.  Their personal life is their business.  Ask them questions about the issues that concern you as their employer—can they be at work when you expect them to be there and perform the tasks you want them to do?
  • Prepare job descriptions.  Remember, a want ad and a job description are two different documents.  The want ad may list some of the duties and responsibilities you expect this position to perform.  However, a job description should more completely list the expectations of the job (including, of course, a catch-all statement along the lines of “and any other related duties as assigned by management” which prevents an employee from complaining that some task is “not on my job description.”)  Employees should receive and sign a job description when they start a job.
  • Have an employee handbook which outlines the basic policies you expect all employees to follow.  This handbook would have such things as your anti-discrimination and harassment policy; policies about attendance and paid time off; policies about when pay day is and how employees are expected to act at work and what they are expected to wear; policies about using the company’s computers and whether you permit cell phones at work.  In short, the employee handbook sets your expectations of your employees generally.  Have the employee sign an acknowledgement indicating that he or she received the handbook and knows it needs to be adhered to.
  • Have procedure manuals and memos that apply to specific jobs.  While you would expect a bookkeeper to already be skilled in bookkeeping, and a data entry clerk to know how to type, there will be certain aspects regarding how things are done at your company that are important to relay to your employees.  When your job descriptions are 5 pages long, you are really writing a procedure manual for a particular job.  Job descriptions are a page or two and tell what is expected.  Procedure manuals explain how to do it in more detail.  Again, have a sign-off page indicating the employee received the procedure manual for his or her job and knows it needs to be followed.

Having these documents in place will be helpful tools to assist your employees in meeting their expectations on the job.  They will also be helpful defenses from a legal viewpoint should the expectations not be met and the employee’s employment be terminated.


*Ms. Lindeman is a Partner at Greenwald Doherty LLP, a law firm that exclusively represents businesses in all aspects of labor and employment law.  These columns are intended to be general information regarding the topic discussed and are not to be considered legal advice regarding a specific situation. Contact a management-side employment attorney familiar with the law of your jurisdiction for specific advice.  Ms. Lindeman is admitted to practice law in NY and NJ and may be contacted at DL@greenwaldllp.com.  She is under no obligation to respond to reader inquiries personally, but may answer general employment law questions through this column.

© 2011 Greenwald Doherty.  May not be reprinted without permission.

How Prepared Are They For the Interview?

When people apply for a job, the amount of preparation they do ahead of time ranges from none whatsoever to an enormous amount of preparation. You might find it helpful to learn what someone does to prepare for that interview with you.

For instance, have you ever been to a major bookstore and looked over the number of books available on the subject of jobs? There are dozens upon dozens of them telling people how to write a great resume; how to handle themselves in the interview; even what questions they should ask of the prospective employer.

I strongly recommend you take an hour or so and peruse through some of these books.

These books serve a purpose but when I ask someone a question about their previous employment, I’m more interested in THEIR response as opposed to a response they found in a book.

You could go the direct route and ask your prospective employee if he has read any of these books and if so, to give you an idea of how much he’s studied up on this. Then, getting even more to the issue, you could ask how much of his responses to you may have been influenced by the books he read.

I believe it’s a very good thing your prospective employee wanted to be as prepared as possible for every part of the hiring process. He may have hired a resume writing service and he may have spent several hours drilling possible interview questions with a “coach” whose been around the hiring block.

I see this as a professional approach to getting hired. But these hiring tips are written with the employer in mind and there is something to be said for getting “unrehearsed” answers to your questions.

What if your applicant said, “yes, I read several books and spent a fair amount of time discussing with others how I should best answer certain questions.” If you get a very honest answer like that, I’d say, “Thank you for being very candid. Now, reviewing some of the things you said earlier, is there anything you’d like to revise?” Your applicant might say something like, “well, I mentioned earlier that I really enjoyed the learning experience at my previous job, but honestly I didn’t feel very challenged there. I feel I’ve got a ton of ability and I want to be working where I can maximize that ability.”

Well now, you’ve just peeled off a layer of the hiring onion and you’re getting more of the straight scoop that you’d like to see in the interview process.

Most of the time, people want to give you an unrehearsed answer to your question. Sometimes you just need to help them out a bit to do so.

Hiring and the Law —Hiring Employees With Non-Solicitation and Other Such Agreements

Devora L. Lindeman, Esq., Partner at Greenwald Doherty LLP, is providing us with insight and information regarding the hiring process. Ms. Lindeman is a management-side employment lawyer and has exclusively represented managers and companies in federal and state agencies and courts with regard to their labor and employment needs for many years.

Questions addressed to Ms. Lindeman may be addressed in this column.

Hiring and the Law
By Devora L. Lindeman, Esq.*

Question:  The salesperson I want to hire has a non-solicitation/ non-competition agreement with a prior employer.  Can I hire her?

Answer:  Maybe.  When hiring for any position, it is always prudent to ask the candidate whether he or she has an agreement with a prior employer that covers non-solicitation, non-competition and confidentiality.  Just because the candidate has such an agreement, however, may not automatically mean that you can’t hire that person.  To begin with, the agreement may not even apply to the job the person is being hired for.  Furthermore, depending on the law of your state, the agreement may not be enforceable, even if it appears to apply.  And last, it may apply and be enforceable, but you may still be able to hire the person as long as he or she does not violate the agreement while working for your company.

This is a situation where it is generally a good idea to consult with a management-side employment lawyer before bringing the new hire on board.  Too often, I see clients sued by their new hires’ former employers alleging that the new hire is wrongfully soliciting their clients and/or using the former employer’s confidential information–at the request and/or with the knowledge of their new employer (potentially, you).  Thus, such a lawsuit is brought against both the former employee and that person’s new employer.

These agreements are generally utilized to protect company confidential information (i.e. customer contact information, preferences, pricing, etc.) and the business relationships with customers.  Your prospective salesperson likely has an agreement saying that:

(a) She cannot utilize her former employer’s confidential information. This would likely include a prohibition against utilizing information about when customer contracts expire and what the former employer was charging for goods and/or services to the extent that information was not public knowledge. Other similar, confidential information could be protected.

And/or that

(b) She cannot solicit (contact) the customers she worked with at her prior company to sell them a competing product should she go work for another company.

Other prohibitions and restrictions may also be included.

If your company does not sell products that compete with those the prospective salesperson sold at her prior company, then in all likelihood, her agreement would not even apply.  If the products are competitive, you would first want to determine whether her agreement is enforceable.  There are many legal reasons why the agreement could be faulty so that if her former employer tried to enforce it in court it would not be successful.

That said, you may not want to spend the money to pay lawyers to argue that your salesperson’s agreement with her former employer is unenforceable.  In that case, it would likely be prudent to either (a) see if the salesperson can work for you without violating her agreement by, for example, creating new contacts and not contacting the customers she worked with at her old company and absolutely not referring to any information belonging to her prior employer, or (b) not hire this person because of the potential legal risks to the company.

The important thing, however, is to get a copy of the agreement from your prospective employee so it can be reviewed.  Following that, appropriate decisions can be made.  And, by the way, it is probably a good idea for your company to consider implementing these types of agreements.

*Ms. Lindeman is a Partner at Greenwald Doherty LLP, a law firm that exclusively represents businesses in all aspects of labor and employment law.  These columns are intended to be general information regarding the topic discussed and are not to be considered legal advice regarding a specific situation. Contact a management-side employment attorney familiar with the law of your jurisdiction for specific advice.  Ms. Lindeman is admitted to practice law in NY and NJ and may be contacted at DL@greenwaldllp.com.  She is under no obligation to respond to reader inquiries personally, but may answer general employment law questions through this column.

© 2011 Greenwald Doherty.  May not be reprinted without permission.

Hiring People Just Like You?

Some of us want to bring people on board that are, well, just like us. Let’s briefly examine the pros and cons of this.

If you have a high opinion of yourself and ideally you should, then you logically believe having more of ‘your qualities’ in the workplace is a good thing.

You’re hard-working, ethical, caring, determined and communicative. And now that you think about it, you’d love to have an exact clone of yourself in every key position.

Frankly, there’s absolutely nothing wrong with that. Well, having those qualities present, not the cloning.

People work well with others they are “in agreement” with. It breeds harmony and a harmonious work space is often a very productive one.

So how could this approach be a problem for you?

If you are zeroing in on these specific qualities and overlooking other very positive qualities a candidate may bring. There’s also the possibility your applicant may manifest your “great features” in his or her own individual way.

Your applicant may be very different from you and this may initially be off-putting. But these differences may not be critical to job performance. You could have a real diamond sitting in front of you who has a tremendous amount to contribute to your scene.

Focus on the value you believe this person will bring, and you’ll always be moving in the right direction.

 

The Importance of "Team" Players

In addition to providing you with “hiring tips,” we mentioned that we’ll also provide some tips to help improve staff performance. Here is another tip in that line.

All too often we observe people handling situations in life with a “me first” attitude:

“What’s in it for me?”

“How will I be benefited by this?”

“Will I make more money as a result of this?”

While it’s perfectly reasonable to want to know how we will personally benefit, it’s also important to consider the effects on the overall group that we are a part of (company, association, school, family, etc.).

How many times have we seen a professional athlete leave one team because another team offered more money? When we (too often) hear this athlete quoted as saying their decision was based on their family’s best interests, some of us are curious how the family is not doing well on 4 million dollars a year and the increase to 6 million a year is crucial to their continued survival. This may sound a bit cynical, but sometimes I wonder if these families really want to be uprooted and start whole new lives in another city or if they would prefer to stay where they are…and that more money is NOT really an issue to them.

Now if the athlete just came out and said, “You know, I love having a ton of money and I just want a ton more and that’s why I’m leaving my current team and moving on” … that would be a refreshing statement.

Don’t get me wrong. I do not begrudge anyone wanting to make more money. What concerns me is that the concept of “team” seems to have eroded some over the years. And a team is an essential element in the success of a business, especially a small business.

I believe if you make it a point to surround yourself with “team players,” your chances of success are ENORMOUSLY improved. And your stress level will go down in proportion to the amount of team “play” you’ve got happening.

This is not to say that you should overlook having skilled people working with and for you.

If I had to distill this down to a one-liner, it would be:

A skilled team player is a far greater asset than simply a skilled player.

If you find these tips on improving staff performance helpful, feel free to drop me a line and let me know. Or you can leave a comment below.

Discuss the Purpose of the Company

Do you have a clean statement of your company’s purpose? If not, take some time and put that together. Here are a couple of examples.

Shoe store:

To provide our customers with just the right shoes and such great service that they’ll gladly recommend our store to their friends. To be increasingly viable.

Dental office:

To provide such superb dental care to our patients that our practice can easily grow from the word-of-mouth of our happy patients. To manage the practice efficiently. To have an increasingly prosperous practice.

Once you’ve got your company’s purpose figured out and written down, show each applicant this purpose and ask them what they think about it. The conversation could go like this:

You: “John, here’s a statement of the purpose of our company.”

Give them the time to read it fully.

You: “What do you think about that?”

John: “I think that’s a great purpose.”

You: “Great. How do you see yourself fitting in with that purpose?”

John: “Well, I see myself…”

You: “That sounds good. What about the part about happy patients being willing to bring their friends to the practice? How could you contribute to that?”

John: “I would do…”

You: “Again, good info, John. How about the part about having an increasingly prosperous practice? What actions do you see yourself taking to help bring that about?”

And so on.

As in earlier hiring tips, be sure to watch the person carefully as he gives you his answers. If the applicant is able to answer these questions very easily with little to no strain, this is a positive sign. If he struggles to see how he can contribute to the company’s overall purpose, not so good a sign.

Either way, this will give you some additional insights.
 

How Much Does Appearance Matter?

When you walk into a room to interview a new applicant, what is the first thing you notice? Almost always, it’s the person’s appearance, right?

If the person is very well-dressed and well-groomed, that makes a very good impression, right?

Of course.

Let’s look at a couple of examples with Steve and Mary.

Now I realize this may be a bit of splitting hairs, but what if Joe is wearing a nice shirt and pants, but not a coat and tie? Does that make a difference?

If Mary shows up in a pants suit but isn’t wearing a dress, does that matter to you?

What if Mary is wearing a very casual outfit but her hair is somewhat mussed up?

If Steve’s shoes are a bit ragged, is this a problem?

All in all, appearance should definitely matter. To what degree is going to depend on your personal preferences and the type of job the person is seeking. If Steve is applying for the job packing boxes all day long, his appearance will not be as critical as it will be for the patient care coordinator position.

But how the person dresses and how the person presents himself for this all-important interview can tell you a good deal about this person. If the person does not place significant importance on their appearance in their first meeting with you, the likelihood is their appearance will be even less important in their day-to-day work.

Take a close look at your applicant. If the person makes a real effort to make a good impression with their appearance, then this is a step in the right direction.

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