Independent Contractors, Point-Based Attendance, and Harassment

It’s time again for our HR Basecamp roundup. If you’re new here, we take the most popular submitted questions from our HR Basecamp Facebook group every other week and go more in-depth on the answer. Join the over 10,000 other office managers and business owners here to submit your questions and participate in the discussion!

Podcasts and Resources in this Roundup:

COMPLIMENTARY HR Education Course: Guide to Worker Classification: W-2 vs. 1099

ADDITIONAL RESOURCES:
Why Progressive Corrective Coaching Is Better Than Progressive Discipline Episode 304: Points-Based Attendance Policies

I've heard talk about new rules for independent contractors. Does this mean I can’t hire associates and hygienists as independent contractors anymore?

The legal side of things: You heard right! The Department of Labor’s latest independent contractor ruling makes it much, much harder for employers to classify workers as independent contractors. The new guidance makes it clear that practically all healthcare workers should be classified as regular employees. Be sure to take our complimentary 20-minute course on the subject here.

Hygienists have always been considered employees, and this is only reinforced by the DOL’s latest guidance. This means you should immediately address your current hygienists’ classifications and should not classify any new hires as independent contractors.

A key piece of the DOL’s new guidance is that classification must be determined based on the “extent to which the work performed is an integral part of the potential employer’s business.” Almost all associate doctors’ work is considered an integral part of an employer’s business (i.e. a pediatric dentist who performs dental work at a pediatric office, or a dermatologist working at a medi-spa). There may be some exceptions for specialty doctors or nurses providing services outside the norm of what a business offers, but those are few and far between.

It's important to note that it does not matter if an employee requests to work as an independent contractor. The responsibility is on you as the employer to classify them correctly, and misclassifications can cost you thousands. If you’re considering classifying anyone as an independent contractor, we strongly suggest you speak to an HR Expert about it first.

Now for the human approach: There’s not much flexibility when it comes to these rules, so your biggest HR hurdle is going to be managing employee responses to being re-classified and potentially losing out on new hires who insist on being hired as independent contractors. However, that’s a small price to pay compared to the potential fines should you be audited.

Now is a good time to review any job ads you have out and existing job descriptions to make sure that positions are classified correctly.

Luckily, CEDR has created a complimentary course led by CEO Paul Edwards to walk you through these changes! CEDR members, you can find the course in the Training Center in backstageHR.
I want to implement a points-based attendance system. Do you have any guidance on the best way to get started?

The legal side of things: The primary legal concern here is that points-based policies often don’t take into account absences that might be protected under a variety of state and federal laws. In fact, the Equal Employment Opportunity Commission has regularly struck down point based policies for violating ADA and pregnancy discrimination protections.

With the quickly growing rate of protected medical, pregnancy, and sick leave laws that are being passed, these policies are riskier than ever.

Now for the human approach: Points-based policies seem simple enough. One absence equals one point, enough points equal a corrective action. But when that absence is protected by law, that one point can cost you more than you can imagine. If you take adverse action against an employee for a protected absence, that employee now has a case for a discrimination claim.

What if your policy says that the point system doesn’t apply if it’s a protected absence? Well, that’s easier said than done. This caveat can make it even harder for managers to track and enforce the policy. This is especially true if you’re in a state with multiple protected leave laws. It also still puts the employee in a difficult position where they are even more scared to lose their job if they have a medical issue.

If you’re having regular attendance issues, we recommend addressing them on a case by case basis with each team member. Your employee handbook should clearly outline attendance expectations and how excessive, unprotected absences are addressed. We strongly suggest following a Progressive Corrective Coaching method for disciplinary action. If you need assistance creating a compliant handbook policy, or have a specific attendance issue you need help with, the Solution Center can help!

Extra credit listening: Points-Based Attendance Policies

One of my employees has shared that they’re experiencing harassment (from someone outside of the office) and they’re concerned the person will show up to work. What are my responsibilities here?

The legal side of things: As an employer, you don’t have a legal obligation to alert the authorities about harassment in an employee’s personal life. In fact, alerting the authorities can sometimes make the situation worse for the victim.

That said, you do have a responsibility to this employee and the rest of your staff to ensure a safe work environment. If there’s a chance the offender will come to your workplace in an effort to contact this employee, it’s a good idea to have a plan in place for how you’ll handle the situation.

Depending on the specifics of this employee’s situation, they may also be eligible to take protected time off. There are multiple state laws that provide leave for employees to use to seek assistance related to harassment, stalking, or violence.

Note that if the harasser is a third-party related to the office, such as a vendor or a patient, your responsibilities change. If that’s the case, you are required by law to address the harassment and conduct a thorough investigation.

Now for the human approach: The most effective way to help this employee is to ask how you can support them. They know the issue the best and talking to them will be the best way to determine what you may or may not need to do to keep everyone safe. Is the employee worried about this person hanging around company property? Do they think they’ll actually try coming into the office? If so, what’s the employee’s preference for how you might handle the situation? Keep in mind that this is a more collaborative approach and some suggestions might not be feasible if workplace safety is in question.

It can also be helpful to offer information about local resources if appropriate. If you offer a group health plan, you can check to see if you have Employee Assistance Program (EAP) services available to those who are signed up with your health insurance. Oftentimes they can help employees get counseling or provide other resources to support them.

The bottom line is that these issues can be incredibly stressful and scary for victims. Being a supportive, open ear for your employee and keeping an open line of communication about what they need is essential.

May 12, 2024

Friendly Disclaimer: This information is general in nature and is not intended to provide legal advice or replace individual guidance about a specific issue with an attorney or HR expert. The information on this page is general human resources guidance based on applicable local, state and/or federal U.S. employment law that is believed to be current as of the date of publication. Note that CEDR is not a law firm, and as the law is always changing, you should consult with a qualified attorney or HR expert who is familiar with all of the facts of your situation before making a decision about any human resources or employment law matter.

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