Archbright™ Insights February 2017

HR Advice and Counsel Insights

New DOL Website Issues Facts to Combat Employee Misclassifications

In its continuing battle to reduce the number of “independent contractor” misclassifications, the US Department of Labor (DOL) recently launched a website educating both workers and employers on the factors used to

determine whether someone is an employee or independent contractor. Since employers are the ones held financially liable for misclassifications, it may be useful to be aware of the “warnings” the DOL has issued to workers on whether they should challenge their employer’s decision to label them as independent contractors. DOL Message to Employees - You are NOT automatically an independent contractor simply because you: 1. Receive a 1099 from your employer. 2. Sign an Independent Contractor Agreement with your employer. 3. Have an Employee Identification Number (EIN) or paperwork stating you are a LLC or other business entity. 4. Are told “it is common industry practice” to hire only independent contractors for your position. 5. Are paid in cash or “off the books.” 6. Work off site or from home. 7. Have been an independent contractor with the employer for years. 8. Want to be. What matters is whether the reality of your job situation indicates you are economically dependent on the employer (an employee) or in business for yourself (an independent contractor). Employers that are only using the methods above to justify independent contractors’ status or are uncertain if employees are correctly classified can review the KeyNote - Contingent Workers: Legal Issues Involving Independent Contractors, Temporary and Leased Employees available to silver and gold members on Archbright’s HR Toolkit online. For questions, please contact the HR Hotline. Source: Jo Powers, Director, HR Strategies & Practices at Archbright

HR FAQ Question: Our Customer Service Manager wants to bring her service animal to work with her. Do we have to allow the animal in the office? Answer: It depends on whether the animal truly qualifies as a “service animal” under state or federal law. Service animals fall into several categories, but are most commonly called “Service Animals”, “Emotional Support Animals”, or “Therapy Animals”. Under the ADA (and applicable laws in Washington, Oregon, and Idaho), service animals are working animals, not pets. Service Animals To qualify as a service animal, the animal must be individually trained to engage in specific actions or tasks to assist a “human” with a disability. This training is more than the obedience training or positive reinforcement typically given to family pets. The US Department of Justice says, “the work or task an animal has been trained to provide must be directly related to the person’s disability.” To legally qualify for a service animal, individuals must have a disability that substantially limits their ability to perform at least one major life task without assistance. While service animals are usually dogs, horses, monkeys, other animals have also been trained and qualify. This training requirement often eliminates “emotional support animals” and “therapy dogs” from the definition of service animal. Emotional Support Animals The use of companion animals for well-being or comfort has grown in recent years, but those animals are not trained to perform a task related to a disability. Dogs, whose sole function is to provide comfort or emotional support do not qualify as service animals under the ADA or local state laws. Therapy Animals Therapy animals are often confused with service animals. A therapy animal has received obedience training and has been screened for its ability to interact favorably with humans and other animals. The primary purpose of a therapy animal is to provide affection and comfort to people in hospitals, retirement homes, disaster areas, airports, and to people with learning difficulties. These animals are usually dogs, but cats and pigs have also been trained for this purpose. These animals do not qualify as service animals. Before denying a request to bring an animal to work, first inquire about what the animal is trained to do. For further assistance with accommodating service animals, please call the HR Hotline at 206.329.1120 or 509.381.1635.

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