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LEGAL ISSUES AND PRACTICAL TIPS FOR HIRING. Oregon Youth Soccer Association Annual General Meeting January 9, 2010. Chandra Hatfield Williams, Zografos & Peck, P.C. chatfield@wzplaborlaw.com 503-699-1300. Employment Basics : Employee? Volunteer? Or Independent Contractor?.

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legal issues and practical tips for hiring

LEGAL ISSUES AND PRACTICAL TIPS FOR HIRING

Oregon Youth Soccer Association

Annual General Meeting

January 9, 2010

Chandra Hatfield

Williams, Zografos & Peck, P.C.

chatfield@wzplaborlaw.com

503-699-1300

employment basics employee volunteer or independent contractor
Employment Basics: Employee? Volunteer? Or Independent Contractor?

EMPLOY = TO SUFFER OR PERMIT TO WORK

  • Includes all time that an employer knows or should know that an employee is working.

An employment relationship creates numerous obligations,

such as:

    • Minimum wages and overtime (for non-exempt employees)
    • Time and Other Recordkeeping obligations
    • Workers compensation, unemployment and wage taxes
employment exception volunteers
EMPLOYMENT EXCEPTION: VOLUNTEERS
  • ORS 653.010(2): Employment does not include voluntary or donated services if:
    • Performed for no compensation or without the expectation or contemplation of compensation
      • payment of reasonable expenses incurred in performance of voluntary service is permitted
    • For a public employer OR for a religious, charitable, educational, public service or similar nonprofit corporation, organization or institution for community service, religious, or humanitarian reasons.
slide4

*Federal law also recognizes volunteerism as an exception to employment. The US Dept. of Labor considers factors such as:

  • whether the services are performed full-time or part-time
  • the nature of the entity (public or non-profit for charitable, civic, humanitarian, etc. purposes)
  • the receipt by the worker (or expectation of) benefits for performance of the services
  • whether regular employees are displaced
  • whether services are freely offered without pressure or coercion
  • whether the services are of the type typically associated with volunteer work.
slide5

REMEMBER:

  • For-profit businesses/organizations are not allowed to use volunteers.
  • Employees cannot perform volunteer services for their own employer unless:
    • The volunteer services performed are different (not the same or even similar) from the type of services they are employed to perform. (e.g. a paid coach cannot volunteer to coach a special clinic or tournament).
    • The volunteer services are performed outside the normal work hours.
    • The services are freely offered and not coerced.
tony and susan alamo foundation et al v secretary of labor 471 us 290 1985
Tony and Susan Alamo Foundation et al. v. Secretary of Labor, 471 US 290 (1985)
  • Foundation was a non-profit religious foundation that had commercial enterprises (gas stations, retail outlets, motel, etc.) to help generate income. Former drug addicts, derelicts and criminals (“Associates”) volunteered their time to the Foundation in exchange for food, clothing and shelter.
  • US Supreme Court held: Associates were employees entitled to minimum wage and overtime despite their own testimony that they considered themselves volunteers for religious reasons.
  • Rationale: Associates expected the Foundation to provide them with food, shelter, clothing, transportation and medical benefits for the work (& benefits were conditional on the work). These benefits were “wages.”
exception independent contractors
EXCEPTION: INDEPENDENT CONTRACTORS
  • ORS 670.600: An independent contractor is a person who provides services for remuneration ($) and meets ALL of the following:

1. Is free from direction and control over the means and manner of providing the services. Entity engaging I.C. may only specify desired results

    • Means – resources needed to perform the services. Independent contractor must determine which resources (such as tools, equipment, labor, plants, property, work location, etc.) are needed to perform the services.
    • Manner – processes and procedures, work schedules
slide8

2. Is customarily engaged in an independently established business: must satisfy any 3 of the following:

  • The person maintains a business location
    • Must be separate from the engaging club/entity
    • If in the person’s home, must be in a portion of the home primarily designated for the business.
  • The person bears the risk of loss related to the business or provision of services. Must be shown by:
    • Entering fixed price contracts
    • Person is required to fix defective work
    • Person warrants the services provided, or
    • Person negotiates indemnification agreement or purchases liability insurance, performance bonds, or errors and omission insurance
slide9

The person provides contracted services for 2 or more different persons in a 12 month period

    • If not-the person must routinely engage in business advertising, solicitation or other marketing efforts reasonably calculated to obtain new contracts to provide similar services.
  • The person makes a significant investment in the business
    • Purchasing tools or equipment necessary to provide the services
    • Paying for premiums or facilities where the services are provided
    • Paying for licenses, certifications or specialized training when required to provide the services
  • The person has the authority to hire other people to provide or assist him/her in providing the services and has the authority to fire those persons.

3. Is licensed under Oregon law where required

slide10
Note: merely creating or using a business entity (such as a corporation or LLC) by an individual for the purpose of providing services does not establish that the individual is an independent contractor.
primary risks of independent contractor misclassification
Primary Risks of Independent Contractor Misclassification:

Tax liability and penalties for failure to properly withhold employment taxes

Unpaid benefit liability. Example: Microsoft litigation resulted in liability of $96 million in unpaid benefits

Unemployment Insurance liability: The unemployment department will assess a penalties plus interest for all years that taxes are not properly paid.

slide12
Workers' compensation liability: initial fine of two times the amount of the premium that employer should have paid for coverage.

An additional penalty applies for each day the employer continues to employ employees without coverage. There is no limit on this penalty.

The workers compensation division can also seek court orders forcing the employer to comply.

Also, if any of contractors are hurt while at work, the employer will be required to pay the same benefits the injured worker would be entitled to receive if you were insured. In the event of an actual injury, there is an additional penalty and processing fees to the workers' compensation division.

Finally, if employees who are misclassified as independent contractors and thus not covered under your workers' compensation policy are actually injured, the employees retain the right to file lawsuits against the employer for their injuries (a right they would not have if covered by the workers' compensation system).

contract obligations arising from the hiring process
CONTRACT OBLIGATIONS ARISING FROM THE HIRING PROCESS

…of course we’d never

Yes, your employment terminate you without

will be permanent just cause

…sure, you’ll have a job until retirement

integrated at will statement
INTEGRATED AT WILL STATEMENT

I understand that no supervisors, manager or other representative of the Company has any authority to enter into any employment agreement for any specified period of time, or to assure me of any future position, benefits or terms and conditions of employment, except as specifically stated in a current written agreement signed by the Club President.

tort liability arising from the hiring process
TORT LIABILITY ARISING FROM THE HIRING PROCESS

NEGLIGENT HIRING

Liability to 3rd parties is incurred from the failure to obtain adequate reference/background information when injuries/damage is caused by the foreseeable acts of an employee.

Mom, please tell them I will be out and available for work in two weeks

the application process
THE APPLICATION PROCESS

TIPS:

  • Obtain fully completed and signed applications from all applicants.

• Do not accept resumes in lieu of Employment Applications

• Do not accept incomplete, undated or unsigned applications

• Do not consider applicants with expired applications

  • Require all applicants to sign an Authorization for Release of Reference Checks as a condition of consideration for employment.
general guidelines for conducting an interview
GENERAL GUIDELINES FOR CONDUCTING AN INTERVIEW
  • Prepare for the interview

• Allow a sufficient amount of time

• Plan an appropriate environment

• Review the application

• Formulate interview questions

  • Begin the interview with a thorough review of the

Employment Application.

slide20
Limit questions to those acceptable under employment

discrimination and other laws.

  • Re-direct applicant who volunteer information that cannot lawfully be used in making hiring decisions.
  • Document “usable” information, but do not document

information that cannot be lawfully used in making hiring decisions.

effective interviewing techniques
EFFECTIVE INTERVIEWING TECHNIQUES
  • Ask open-ended questions (behavioral; probing; hypothetical) they will provide you with greater insight into the applicant’s work ethic, job-related values and suitability for the job.
  • Avoid leading questions and questions with predictable “right” answers . . . they will not provide you with valid information.
  • Avoid “cross examination” questions . . . they will make the applicant defensive.
slide22
Do not share information that reveals the “perfect candidate for the job” . . . you will get that information back, even if it doesn’t exist.
  • Practice active-listening skills – talk less, listen more . . . you aren’t being interviewed.
  • Use silence to your advantage . . . require the applicant to answer your question.
  • Use neutral terms and softer introductory phrases . . . they will encourage more candid responses.
getting information
GETTING INFORMATION
  • Probing. . . questions that allow the interviewer to

drill down deeper, usually short and simply worded.

• “Why?”

• “What caused that to happen?”

• “Under what circumstances did that occur?”

• “Who else was involved in that decision?”

slide24
Hypothetical . . . questions are valuable tools

• “What would you do if . . .?”

• “How would you handle . . .?”

• “How would you solve . . .?”

• “In the event that . . . ?”

slide25
Use neutral rather than emotional words

EmotionalNeutral

Fight Didn’t get along

Quit Left

Bad Not as well or less satisfactory

Fire Discharge

Job hopping Changing jobs often

Hate Dislike or did not enjoy

slide26
Use softer introductory phrases

• “What prompted you to . . . ?”

• “Is it possible that . . . ?”

• “How did you happen to . . .?”

• “What led you to do . . .?”

• “Describe for me a specific time

where . . . ?”

red flags in interviewing
RED FLAGSIN INTERVIEWING

Unreasonable or unrealistic expectations

“Chip on the shoulder” responses or excuses for past employment record

Perception of self does not correspond with employment history

Positions held show declining levels of responsibility that tend to be indicative of individual efforts, rather than economic climate or other uncontrollable factors

Explanation or reasons for leaving previous jobs are vague or unsatisfactory

Unexplained or suspicious gaps in employment history

reference checks
REFERENCE CHECKS

Why Check References?

• “Because the best predictor of future behavior is past

behavior.”

• Also . . . To eliminate candidates who have given false

information.

• To protect against negligent hiring claims.

applicant authorization for reference checks
APPLICANT AUTHORIZATION FOR REFERENCE CHECKS

I hereby authorize my past employers to release information to_____________________ Soccer Club regarding my employment. This release of information covers my employment record in general, including information on the following questions:

1. Dates of employment;

2. Position(s) held;

3. The quality and quantity of my work;

4. My attendance habits (excluding workers’ compensation, pregnancy, disability, FMLA and other protected

absences);

5. My relationship with co-workers, supervisors and managers;

6. My attitude toward work (cooperative? positive?, etc);

7. Reason for leaving and eligibility for rehire (would the employer rehire if they had to do it all over again?);

8. Strong and weak points;

9. Willingness to comply with policies and standards;

10. Whether I have had outbursts of temper, threatened, provoked fights with or assaulted others, engaging in hostile

or violent behavior;

11. Other relevant information regarding my performance, skills, ability, suitability for employment sought, etc.

I agree that all former employers who provide such information are indemnified and release from liability arising from such

disclosures. I also understand that if I do not sign this Authorization, my application will be rejected.

______________________________________________________

Print Name

______________________________________________________ _____________________________________________

Signature Date

applicants and employees cannot be discriminated against based on
APPLICANTS AND EMPLOYEES CANNOT BE DISCRIMINATED AGAINST BASED ON:

Use of Workers’ Compensation

Retaliation for opposing unlawful employment

practices or participating in employment

proceedings

Use of family medical leave (OFLA, FMLA)

Opposition to safety/health hazards

Whistle-blowing

Military duty

Association with a person of a particular race,

religion, sex, etc.

Union and concerted activity.

Garnishment

Use of other employment rights (wage & hour,

unemployment, etc.)

Refusal to take polygraph, psychological stress

or blood/breathalyzer test to detect alcohol

Use of domestic violence leave rights

  • PROTECTED

STATUS

  • PROTECTED

ACTIVITY

  • Race/color
  • Religion
  • Sex
  • National origin
  • Marital status
  • Age-18 & older
  • Pregnancy
  • Family relationship
  • Citizenship
  • Veteran status
  • Expunged juvenile record
  • Being a smoker
  • Sexual orientation, Gender Identity