December means the holidays, family and even stress, but it may also be the time to think of bonuses for your employees, which leads me into the timely discussion of the difference between independent contractors and employees.
I usually get this question when a business owner is worried that the person they have been giving a 1099 form to—the IRS form given to independent contractors so that they pay their own taxes- is not really an independent contractor. In fact, this person is an employee who is being fired and may want to collect unemployment, something an independent contractor cannot do.
The IRS looks at three criteria:
• Behavioral Control covers facts that show whether the business has a right to direct or control how the work is done through instructions, training or other means.
• Financial Control covers facts that show whether the business has a right to direct or control the financial and business aspects of the worker’s job.
• Type of Relationship factor relates to how the workers and the business owner perceive their relationship.
In Massachusetts the law and test is stricter as people are considered to be an employee under those chapters unless:
(1) the individual is free from control and direction in connection with the performance of the service, both under his contract for the performance of service and in fact; and
(2) the service is performed outside the usual course of the business of the employer; and,
(3) the individual is customarily engaged in an independently established trade, occupation, profession or business of the same nature as that involved in the service performed.
The best example to illustrate is:
Independent contractor: You are a health care practitioner with your own office and need an electrician to install outlets. You hire an electrician, you do not know how to install outlets, do not tell the electrician how to do their job and pay them a fee for the service they have done.
Employee: You are a health care practitioner and you offer massages, you hire a massage therapist, give the massage therapist a room, clients and tell the massage therapist what time to come in. This is an employee.
The issue is that it is less expensive to utilize independent contractors because with employees the employer must pay payroll taxes, workers compensation and unemployment. However, the question is how much do you want to risk since penalties are stiff for a business owner.
I was watching an episode of the Good Wife and their files were being held for ransom. I thought it was something that was fictional, but when I was speaking to Marcus of ASCE Solutions I learned otherwise. He has helped businesses when they find their files held hostage- truly the only avenue is to pay.
What can be done?
Since 2010 Massachusetts required every business or individual who uses a Massachusetts resident’s personal information to have a Written Internet Security Program. Many people do not know about this requirement.
To start what is personal information?
(a) Social Security number;
(b) driver’s license number or state-issued identification card number; or
(c) financial account number, or credit or debit card number.
What WISP is requiring is that paper files are locked and their access is limited. For computer files they require firewalls, virus programs and if you backup then that needs to be secured, too.
You mention ransoms?
There are individuals that hack into computers and will hold files hostage. It has happened to many companies, but is not publicized. A case that was publicized was that of Swansea Police Department. They were forced to pay $750 in ransom earlier this month to hackers after a virus locked all of their computer files.
Meet the WISP protocols at least, but think about working with a technology expert. Adhering to the law is important, but being protected.
For more information on WISP: http://www.mass.gov/ocabr/docs/idtheft/sec-plan-smallbiz-guide.pdf
In a two week time span the same thing happened.
I was asked about creating a business entity. I would love to create the entity for them, but the truth is that insurance is more important and you are better off by putting the money you will pay to create a business entity towards insurance.
Don’t believe me?
I will share one of the experiences. A dog walker contacted me and I listed three companies that provide insurance. Where money is an issue, insurance is a better investment unless you plan on selling your business in the very near future or have the extra money to put towards a business entity.
Did the dog walker listen?
A dog got away from one of the handlers and was hit by a car, but scampered off and has not been seen as of yet.
If the dog is never found then sorry dog lovers, a dog is considered personal property and the dog walker will be liable for the cost of the dog only. If the dog is found and is injured, this could be a problem with the cost of the veterinarian bills which may exceed the value of the dog.
Would a contract have helped?
Possibly as it would have given the amount to which the dog walkers are liable, limiting exposure.
Would the business entity have helped?
Not at all. The idea is that a business entity protects personal assets, but the business entity or the individuals involved will have to make some sort of payout, and had there been insurance, then the insurance company would have made payment.
Remember, insurance and business law go hand in hand.
It is summer vacation time! This may involve an airline, a hotel, a rental car and dealings with service businesses all to make your vacation a success.
But, things can go wrong as I discovered in Turkey when our airline cancelled their flight and we were left at the mercy of chaotic, disorganized Turkish airport.
Thankfully, back home and safe and sound (after a harrowing taxi cab ride at 90 miles per hour going down one way streets the wrong way with a driver who did not speak English). However, there are repercussions, expenses that I incurred and I want to be put back to the place I would have been in if the trip had gone smoothly.
What to do? Just like I advise in business- keep records, receipts to prove what happened to you. Write it all down and make notations so that you know what you have. This is your evidence. As I have mentioned before most cases are lost because there is not enough evidence to prove what has happened to you.
Start making phone calls, sending emails and writing letters. Your letters and emails should be direct with what happened to you and what you are looking for in compensation.
This is a process of persistence and patience, but I am sure it will all work out.
True North Business Consulting provides legal services and mediation. For more information contact us today!
Kerri Salls of the Exit This Way Radio Show interviewed Cynthia Pasciuto of True North
Business Consulting. The podcast can be found here with lots of valuable advice and an
engaging conversation that you do not want to miss!
I was recently was interviewed by Dr. Georgianna Donadio of the National Institute of Whole Health (NIWH). NIWH provides credentialed individuals with educational programs.
Our conversation was about starting a business and included legal, marketing and management information in a short 20 minute segment. To listen go here.
I recently gave a presentation at the Women’s Innovative Network. It was an amazing, attentive audience of entrepreneurs. My talk was based on 10 ideas that can help your business. I believe my last one is probably the most important one.
Do you need a lawyer?
As a lawyer, you would assume that I would say a wholehearted, YES! But, instead what I suggest is you collect as much information as you can before contacting an attorney.
You are the person who knows the most about your profession. If you need more information, then I always suggest connecting to your professional association, whether that is local or national. They will be a great source to you to help your business.
When should I contact an attorney?
If you need a contract or agreement created, then you should contact an attorney, but with the information that you are providing, then it will be a shorter phone call or meeting. This saves you money, but you have also educated yourself about your business.
I also suggest getting a lawyer involved if you are taking part in a negotiation. Again, a short conversation can help you manage the situation, get a reality check and put you on winning road.
If there is a disagreement, then I always advocate mediation, but mediation with an attorney mediator can make a difference in a business conflict.
Lastly, any legal complaints or issues with governmental authorities do need legal intervention. Many times I have seen people ignore paperwork or wait until the last minute. If you are being sued, then you need to immediately hire an attorney.
In my legal work I come across some interesting dilemmas with clients. The issue that is the most challenging is understanding the client’s scope of practice. Many professionals are licensed. In Massachusetts the Division of Professional Licensure (DPL) is an agency within the Office of Consumer Affairs and Business Regulation. The DPL oversees 31 boards of registration, which license and regulate more than 370,000 individuals and businesses to practice some 50 trades and professions in Massachusetts. If you are licensed, then you need to stay within what you were trained or educated to do. For example, you cannot be a home inspector and then do mold remediation.
This happens frequently when people want to change their profession, but find it difficult to make the educational commitment (whether it is cost or time). Instead they find something “close,” which they can do on the weekends or online. It sounds like a great idea.
It’s not. The simple reason is a liability issue arises. I recently learned about a health coach doing nutrition counseling. In Massachusetts dietitians and nutritionists are licensed and will be reimbursed by insurance companies. A health coach may provide information, but it will not be covered by insurance. Other states have other rules, and in Florida the health coach is being sued because nutrition and supplement information is not what a health coach should be doing in that state, only licensed registered dieticians are allowed.
Be careful of licensing issues and staying within your scope of practice. Know the rules in your state. If there is no licensing, then a professional association in your field should be able to help provide guidance.
“You need insurance.”
I say this to all my clients, which is surprising because you may not know that the legal profession and insurance profession are often at odds with each other. Each profession believes that they are the only solution for a business. As a licensed insurance advisor and attorney I look at both and can tell you that both legal documents and insurance coverage are needed.
If you are a service business with an office (can be a home office, too), then you need a legal contract that explains to your client your services, your fees, how you get paid and providing protection in case something goes wrong. However, an agreement can only go so far.
What if something goes wrong?
What if your client trips or slips in the snow or ice at your location. What legal document is going to protect you?
A property insurance product will provide you with peace of mind protection. You can also get insurance that provides protection for mistakes you may make while conducting your profession.
Remember to review what you currently have, and give True North Business Consulting to make sure that your business is protected legally and you have the right insurance products.
January 6, 2014
A snowstorm is a good reason to stay in and I can always find something to do. This time though I caught back to back episodes of the Property Brothers. If you have not seen this show on HGTV then you are missing out on Jonathan and Drew, twins that help find and remodel homes (in Canada). In each episode there is doubt by the buyers that the house can be remodeled to the way they want it—they cannot see what Jonathan sees.
It is the same with mediation. Unless you have been involved in a mediation, then it is difficult to understand and see what is going on. Most people are familiar with courtroom dramas and judges making a decision. Most cases settle using mediation or negotiation where you are part of the decision, have more of a say and can usually keep the business relationship intact.
For the new year why not try a new perspective? Think about using mediation for your disputes or before entering a contract negotiate and get negotiation coaching from True North Business Consulting. I understand that you know your business, but I frequently see that people do not know the legalities of their business. Take the time to take a new look and avoid problems later. I also offer a UDEMY class for those who want more information on alternative dispute resolution, which is the opposite of litigation.
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