Need Advise

djacobs475

We had a contractor, who in actuality should never have been classified as such, but when I brought it up to the CEO that this contractor is in fact clearly misclassified and should be made into an employee, he told me no.

Here is the history on BD (contractor): he is a much older man who collects his S.S. benefits, and took care of various duties around here: internal newsletter, external marketing newsletter, etc...He has MS and is in a wheelchair. A nice character, well respected and liked by everyone, and has worked here for the last 5 years. Since November, BD has undergone several operations, been in rehabilition homes, and has physically deteriorated in his mobility (he used to be able to drive himself to work, but not anymore), etc...

BD is finally back home and I believe he'll be calling me soon wanting to return to work. There is no doubt he is at risk of getting himself hurt here.
Before he was hospitalized in November, he had had several incidents where he fell out of his wheelchair on our premises and got hurt. The CEO does not want him back.

But there are several issues involved: First, does ADA apply to someone of "contractor status"? Can we ask BD to have his doctor provide us with a letter to return to work? How else can we proceed? We really don't want him to return to our premises, because of the liability issues.

Any advice from your wise folks would be greatly appreciated. I don't know what are options are and how we should proceed?

Thanks in advance for all your help.

Parabeagle

I may be pilloried for suggesting this, but I'm going to throw this out as a possible option anyway: From your post, it appears that this individual has been treated as a contractor for five years, is, I assume, happy with the arrangement(?) and there have been no complaints. So as far as the contractor versus employee issue is concerned, why rock the boat? Let sleeping dogs lie. If you ask his doctor for a work release, I think you would jeopardize whatever semblance of a contractor relationship you have with this individual because work releases are provided to employees, not independent contractors. Whether or not the ADA applies to independent contractors, I couldn't tell you offhand, but I'm sure there are those much better versed in ADA who could give you a definitive answer.

djacobs475

Parabeagle,
Yes the contractor is happy with the arrangement. My concern is that if we have a visit from FLSA they will clearly see that he was improperly classified as such. As to the doctor's work release, you're right - I thought that might jeopardize this tenuous relationship.
Thanks for your input.

Leslie

Does your contractor have a contract? Who has been performing the work since he has been gone? If you have a contract is he in breech of it?

The misclassification is obvious - office on site, using company tools and equipment. You can't bring him back as a contractor. Doesn't the CEO understand that as an employee under FMLA you may have already had the means to term (don't know if it's been 12 weeks).

djacobs475

Leslie,
Contractor does not have a contract per se, only a statement he signed saying he is working as contractor and therefore pays his own taxes, etc...

The internal newsletter work I have assumed, and the external marketing newsletter is being done by several people.

Yes, the misclassification is flagrant. IF we bring him back, and that's a big if, we would have to do so as an employee.

As far as FMLA, we are under 50 ees - so this would not affect us.
Thanks.

Don D

Your statement that "The CEO does not want him back" is the one I'll go with. Tell the gentleman that the company has decided to not continue with the prior arrangement, that all of the work has been internalized and made parts of existing job duties, and that his independent production of contract duties is no longer part of the company's business plan. From a legal standpoint, I can't imagine what might happen if the man challenges your designation of independent contractor status for the past 5 years.

HRPeg

It is unfortunate for this person that he has been misclassified all these years. If he had correctly been an employee, he probably would have been covered by the ADA. How is this person in danger in your work environment? It does not sound like he is in a manufacturing environment. Being the daughter of a person with MS who has been in a wheelchair for 15 years and has been in an executive position with a Fortune 500 company all these years, I guess I don't get what the danger is. Perhaps he needs a better wheelchair? It is a moot point anyway, because he has been mis classified and therefore, probably does not have ADA coverage. But, I am a little sensitive to this issue...

Theresa Gegen TX

I suggest you contact an attorney immediately to go over your options. This individual has several protected classifications (age and disability), plus you believe that you have misclassified him in the past.

You really need an attorney to help explain the risk to the company and to develop a plan to minize that risk (for example, maybe this employee would sign a release for some severance, etc). Or maybe you could convert him into a true independant contractor and have him work from home with his own computer on the newsletters.

Good Luck

djacobs475

HRPeg,
I am sensitive to your personal experience, but this fellow is not in an "executive corporate environment". Although we do have a small administrative staff, the majority of our ees are production ees, as we are a manufacturing plant of sorts. And when he rides through the plant, he is exposed to all sorts of dangers, not withstanding himself being one of them: as I mentioned before he has had several accidents where he fell out of his wheelchair and got hurt on the cement floor ( at 2 different times, he had to wait several hours until he was discovered)... these incidents are too complicated to explain here.

But I must point out that he wanted to be a contractor so that he would not lose his disability or social security payments. And the CEO agreed (this was all agreed to prior to my coming on board).

sonny

Aha, double dipping. Wonder if he's reported all this income to SS?

Gillian

Follow Theresa's advice and talk to your attorney. It is not a big stretch to imagine the first step in any litigation will be over the misclassification issue, a finding that he was really an employee, thus all the protections that we know so well.

Don D

So, the man 'asked' the CEO to join him in breaking the law and the CEO agreed and did so. What about the annual 1099 form and the man's responsibility for paying his own taxes and social security, or was it cash only? I think what you are saying is that you are in a hole but you did not dig it.

djacobs475

Don,

The guy is paid by check and does get a 1099 every year. But still....

E Wart

E Wart
I am not going to get into the ADA, FLSA and FMLA laws, which seem to be covered in other responses... but, it sounds to me as if his job is no longer available/he is no longer needed. If he is truly an independent contractor but has no written contract, he is to serve (and is paid) by the task. (I don't even know if your state is at will, and I wouldn't think at will would even apply to independent contractor.) If what he was doing is no longer needed and others have absorbed the work or it has just eliminated it, why not tell him so. With economic times as they are, it soudns like that that due to economic situations, the company has decided that his services are no longer needed. However, if situations change or anything else comes along, you will keep him in mind. Otherwise, if it is something like a newsletter and you do need his help, I agree with having him do it at home. Seems like a win win for both (since he has to have transportation to get to work.) However, he will then have to supply his own equipment.
I too have several friends who have MS, and they are amazing at what they are able to do, but they have good and bad days. (One is an Internist and diagnoised himself.) I think you have to be sympathic, but looks to me as you are addressing this backwards. You are looking for ways to not have him come back, but yet do you even need his services any longer? Would you replace him if he doesn't come back?
Just another angle.

djacobs475

E Wart,
No, we wouldn't replace him if he chose not to come back. The work has been absorbed by others and in this economy we are not looking to hire at this time.

But it is precisely because we are sympathetic that the issue arises. This man is very strong willed and is used to being a contributing member, and frankly, I am afraid that if we take away his ability to contribute that "he'll just perish" (that's a direct quote from one of his friends).

I guess, whatever the outcome, it will be a lose-lose situation.

Leslie

"But it is precisely because we are sympathetic that the issue arises. This man is very strong willed and is used to being a contributing member, and frankly, I am afraid that if we take away his ability to contribute that "he'll just perish" (that's a direct quote from one of his friends)."


I had that exact quote thrown at me four months ago when I was trying to get long term disability for an employee, Sam, who was simply no longer able to fulfill the physical requirements of his job. When we finally got the doctor's documentation together, lo and behold, he was a happy man.

Now we have a second employee in the same predicament, and I was again told the guy is simply going to fade away without his job. Last week, we were all present when he hobbled (really hobbled, it's painful to watch him walk) into my office, sat down, looked me square in the eye and said, "Are you going to be able to do the same thing for me that you did for Sam?"

So much for people's perception.

HRPeg

I would agree with the thinking of going at it from a job elimination standpoint as long as you do not anticipate bringing in someone else to do what he did previously. Just make sure the tasks that were distributed out stay that way.

Crout

As Deep Throat said to Bob Woodward, "follow the money." (That's a Watergate reference for all you folks under 40.) I would follow Don's lead and find out how this man was paid. You need ALL the information you can get in order to construct a sound exit strategy. If....I say if...your company paid him under the table that means he has you guys over a pretty big barrel. Your company can not just collude with the EE to break the law and then expect to walk away clean. If it means investing money in a home computer and some training to keep him working and safe, I would do so because the alternative might be far worse.