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律师Gene关于雇佣独立承包商的建议

Gene Thornton

Gene Thornton

Gene R. 桑顿是科罗拉多斯普林斯的一名律师,有超过30年的经验. For the last 23 years, Mr. 桑顿一直是一名独立律师,在那里他从事雇佣法和诉讼. Currently, Mr. Thornton is emphasizing workplace investigations—such as sexual harassment investigations—as the Principal of Thornton Workplace Investigations, LLC. 在开始自己的法律业务之前,Mr. 桑顿是科罗拉多州丹佛霍珀公司的合伙人 & Kanouff, P.C. where, 除了开始公司的雇佣法业务, 他在这家律师事务所担任人力资源经理. 在进入私人律师行业之前,Mr. 桑顿是奥雷尔。M. Kelly of the Colorado Court of Appeals and for the Colorado Department of Law (Attorney General’s Office). Mr. Thornton is the co-author of “Employment Termination Source Book” published by the Society for Human Resource Management (SHRM) in 2006. Additionally, Mr. 桑顿为美国人力资源管理协会撰写/编辑/审查了数百项网络内容, including 25 comprehensive articles on numerous aspects of human resource management.
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The ability to avoid payroll taxes and other regulatory aspects of hiring employees causes many small businesses to turn instead to hiring independent contractors. However, do not make the mistake of thinking that independent contractors and employees are interchangeable based merely upon what you choose to call them.

Don’t misclassify workers as “independent contractors” when, legally, they’re “employees.”

Laws exist to protect workers from being taken advantage of by people who hire workers as “contractors” or “1099 employees” as a way of getting around payment of minimum wage/overtime compensation and statutory benefits that are legally mandated.

Different laws have different tests for the purpose of determining whether a particular worker is an “independent contractor” or an “employee.” “Employee” is defined differently for purposes of tax withholding (federal and state) wage/hour (federal and state), unemployment, and workers compensation insurance. 根据科罗拉多法律,按小时计酬, “employee” “means any person, including a migratory laborer, 为雇主的利益而从事劳动或服务的.” Colo.Rev.Stat. § 8-4-101(5).

“Relevant factors in determining whether a person is an employee include the degree of control the employer may or does exercise over the person and the degree to which the person performs work that is the primary work of the employer; except that an individual primarily free from control and direction in the performance of the service, 根据他或她的服务履行合同和事实上, 他们通常从事独立的贸易, occupation, profession, 或者与所执行的服务相关的业务不是“雇员”.’” Colo.Rev.Stat. § 8-4-101(5).

注意“控制程度”.” Do you see how the definition of “employee” for wage/hour purposes is dependent upon the facts of each situation? If you hire the neighbor’s kid to mow your lawn and you tell him or her to show up exactly at 10:00 a.m. on Tuesdays, to use your own mower, then use your own edger, then use your own leaf blower, 你可能刚刚为自己雇佣了一名“雇员”.” And that would probably still be true if the kid mowed lawns for money for a few other neighbors as well. Contrast that with a true “independent contractor” relationship where you hire a company you found on the internet with four crews of two people each, that come on their own schedule, use their own machines, and have hundreds of customers. If you’re the one with the lawnmowing business and you intend to staff it with a bunch of teenagers who have their own lawn mowing businesses, 但你提供机器,并口述工作时间表, 你可能会被认为拥有“员工”,” not true “independent contractors.”

Don’t assume that just because a worker is an “independent contractor” for one purpose, 无论如何,他或她都是一个“独立承包人”.

“雇员”的定义在其他法规(税收)下是不同的, unemployment, and workers compensation), so don’t believe it if anyone ever tells you there is a simple answer to the question, 他/她是雇员或独立承包人?“这是一项复杂、模糊、事实密集的调查——每项法规都是如此.

The back liabilities, penalties, legal expenses, accounting expenses, and lost sleep you WILL experience WHEN (not “if”) you are audited for misclassification of workers will make you wish you hadn’t done that. The bt365亚洲版官网 offers materials, consulting, and webinars on proper classification of workers. Take advantage of them. Consult the IRS, U.S. Department of Labor, Colorado Department of Labor Wage/Hour Division, Unemployment Division and Workers Compensation Division for the rules for distinguishing “employees” from true “independent contractors” under the various statutes. When in doubt . . . 工人几乎可以肯定是雇员.

是否有书面的独立承包商协议.

It is very important when hiring a worker that in any way could be construed to be an “employee,“你有一份书面的独立承包商协议. In particular, 用于科罗拉多州的失业保险, 独立承包商的关系应由a 包含具体条款的书面协议. 有些规定必须用大写字母或 Boldface. I suggest you hire an experienced employment law attorney to review any independent contractor agreement you come up with. Your average business attorney isn’t going to know about the Colorado unemployment guidelines for what independent contractor agreements should contain. Using qualified and experienced legal counsel can help you include in your form agreement all sorts of things you may not have thought of such as provisions for protection of trade secrets, non-competition provisions, an indemnification clause, 替代性争议解决机制, 还有一项条款,在违约的情况下可以追讨律师费.

查看你的承包商的许可、保险和契约情况.

许多行业都是由 科罗拉多州监管机构部门 也被称为DORA,从事这类工作的人需要获得许可. 即使你不需要授权服务, you may still want a service that has in place suitable liability insurance or bonding. Don’t be satisfied with just seeing a photocopy; call the supposed insurance company to make sure the policy is currently in effect.

© Copyright 2019, Gene R. 律师桑顿,保留所有权利.

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