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Articles
- Employee Separation
- Sexual Harassment
- Job Analysis
- Independent contractor or Employee – Would you pass the test
Termination of employment is a difficult area that often spurs litigation. However, if the termination decision is arrived thoughtfully and conducted properly, an employer can dramatically decrease its risk of being held liable for employment discrimination or other types of wrongful termination or discharge.
Q. What your managers and employees don’t know about sexual harassment can hurt your organization.
Facts you may not know:
- The conduct must be un-welcomed
- Sexual harassment includes physical, nonverbal and verbal behavior
- Gender-based slurs, lewd jokes and sexual contact are examples of sexual harassment
- Behavior that creates a sexually hostile learning or working environment is also sexual harassment
- The victim may be a man or a woman. The harasser may also be a man or a woman.
- The victim does not have to be of the opposite sex in order for sexual harassment to occur.
- The harasser can be the victim’s supervisor, a supervisor of another area, a co-worker, an agent of the employer, or non-employee.
- The victim of sexual harassment does not have to be the person directly harassed. It could be anyone affected by the offensive behavior.
Approximately 15,000 sexual harassment cases are brought to the Equal Employment Opportunity Commission (EEOC) each year. According to the EEOC, the number of sexual harassment complaints filed by men has more than tripled in recent years. Currently, approximately 11% of claims involve men filing against female supervisors.
Maintaining a solid training program focused on preventing sexual harassment and procedures to take in the event of an incident have significantly reduced the number of charges and costly lawsuit expenses in many organization both small and large.
Q. How do I conduct a job analysis to ensure the job description actually matches the duties performed by the employee in the job?
A. Job descriptions are used for a variety of reasons. They are a tool for recruiting, determining salary ranges and levels or grades, establishing job titles, creating employee’s job goals and objectives, and conducting performance reviews. They can also be used for career planning, creating reasonable accommodations and meeting legal requirements for compliance purposes. Because of this, it is very important to have written job descriptions that accurately reflect the employees’ current job duties and responsibilities.
Employers should audit their job descriptions every few years, usually in conjunction with a compensation study and whenever the organization’s purpose, mission or structure changes. One way to audit or create job descriptions is to conduct a job analysis. A job analysis is the process of gathering, examining and interpreting data about the job’s tasks and responsibilities. It generally includes tracking an employee’s duties and the duration of each task, observing the employee performing his or her job, interviewing the employee, managers and others who interact with the employee, and comparing the job to other jobs in the same department and job grade or job family. An important concept in job analysis is that it is an evaluation of the job, not the person doing the job. The final product from a job analysis includes a thorough understanding of the essential functions of the job, a list of all duties and responsibilities, a percentage of time spent for each group of tasks, the job’s relative importance in comparison with other jobs, the knowledge, skills and abilities that are needed to perform the job, and the conditions under which the work is completed.
It’s stressful enough to face a test with thousands of dollars at stake. But imagine if your grade depended on answers that weren’t clear-cut?
In determining worker classification, the IRS refers to a 20-factor common law test. But according to the 1987 ruling that established the test, the factors were “designed only as guides for determining whether an individual is an employee” and may vary in terms of importance depending on the occupation and services in question.
Consequently, experts say the line that legally separates employees and independent contractors is oozing with ambiguity and open to interpretation.
The IRS suggests examining three concepts when determining worker classifications: behavioral control, financial control and the type of employer/worker relationship.
According to the IRS, the first thing to consider when evaluating worker classifications is the extent to which you control how they conduct their work. Most commonly, this control would exist in the form of instructions regarding how, when and where they should do the work. For instance, if a company controls a worker’s hours, workspace or equipment, then the IRS would likely consider the worker an employee.
“Sometimes you begin with an independent contractor, but eventually you start controlling his work hours, telling him what to do and where to go,” says Dennis Newman, tax manager at Sharrard McGee & Co. “At that point, once you get to that degree of control, you approach the employee classification.”
However, if a company gives instructions that consist merely of what work needs to be done and a deadline for its completion — with little or no regard for how the work is completed — then Newman says that would lean toward the independent contractor label.
A company should also assess whether workers are financially invested in their work. For starters, the IRS suggests that workers who are not reimbursed for their business expenses tend to fall in the independent contractor category, as do workers who have invested in significant work – related expenses, like fashioning and maintaining a private office.
The degree of financial risk assumed by the worker should also be taken into consideration when determining the proper classification.
“You should look at whether the individual has the opportunity to make a profit or incur a loss,” says Patti Ramseur, a labor and employment attorney with Smith Moore Leatherwood LLP. “If so, that would suggest an independent contractor.”
Relationship of the parties
A company also should simply consider the nature of its relationship with each worker. That is, does it offer any type of benefits to the individual that are typically reserved for employees — including health insurance, pension plans and paid leave? If so, experts say the IRS will almost assuredly classify the worker as an employee.
An organization should also factor in the duration of the relationship.
“If you are planning on working together for an indefinite period of time, that tends to look like an employee-employer relationship,” Ramseur says. “However, if someone is brought on for a specific project that has an end date, that would appear to be an independent contractor.”
Further, experts say the IRS will look into whether workers are available to work for other companies. Specifically, the agency will want to know whether a non-compete or other contractual agreement prevents workers from offering their services elsewhere.
“Independent contractors aren’t truly independent if they aren’t free to work for anyone else,” Hiatt says. “If that’s the case, they should be considered an employee.”