Gray Areas Regarding Employment Law

Many areas regarding employment law are fairly black and white due to the highly regulated nature of the business. However, there are some aspects of employment law which are endless shades of gray. Two of the most common "gray" areas include "reasonable accommodations" and "proper classification of independent contractors."

Reasonable Accommodations
As an employer you may ask yourself, "Do I have to provide a particular reasonable accommodation?" or "What is considered a reasonable accommodation?" A reasonable accommodation is any change to a job, the work environment or the way in which tasks are usually completed which allow an individual with a disability to apply for a job, perform job functions or enjoy equal access to benefits available to other individuals in the workplace. Employers are required by law to provide reasonable accommodations to qualified individuals with disabilities, unless doing so would impose an undue hardship to the company. As an employer you must ensure you are not discriminating against disability laws. Below are some questions you should consider when determining if you should provide a particular accommodation:
1. What are the employee's job duties?
2. Which job duties do you think are not being adequately performed?
3. What efforts have been made to communicate with the employee about the situation?
4. Has the employee been cooperative in responding to inquiries?
One way to ensure you do not discriminate against disability laws is to have proper job descriptions for each position at your company. Creative Business Solutions can assist you with ensuring your job descriptions are compliant by addressing proper duties, qualifications, physical demands and the work environment.

Independent Contractors
It is critical for employers to appropriately determine whether an individual is an employee or independent contractor if he/she is providing services to your organization. Failure to properly classify workers could result in an audit and possible fines by the Department of Labor and/or the IRS. Determining a proper classification may be challenging to even the most skilled employers. In order to be classified as an independent contractor, an employer should consider the following common law rules:
1. Behavioral: Does the company control or have the right to control the worker's tasks and/or how the worker performs his/her job? Does the worker provide services for other companies?
2. Financial: Are the business aspects of the worker's job controlled by the organization? This includes factors such as how the worker is paid, the reimbursement of associated expenses, as well as who is responsible for providing equipment to perform the job.
3. Type of Relationship: Is there a written contract or benefits provided to the individual, such as a pension plan, insurance plan, vacation pay, etc.? Will the relationship continue in the future and is the work performed a key aspect of the business?
Employers must weigh each of these factors when determining whether a worker is an employee or independent contractor. There is no "magic" or set number of factors which determines whether the worker is an employee or an independent contractor. The employer must look at all the factors and then make a determination.

Creative Business Solutions (CBS) has extensive knowledge determining appropriate classifications of workers. CBS would also be happy to assist you with developing contracts for independent contractors. By having contracts in place, you can also help eliminate the risk of potential lawsuits.

Please give us a call today and we will be please to assist you with any HR related issues.

Lexology "It depends: the top 3 inherently gray areas of employment law".

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