- Terminating an Employee
- Question: How do I keep an employee at-will but require them to give notice before leaving?
- Question: If an employee puts in their notice, can we let them go that day instead of keeping them for the full notice period?
- Question: What is the purpose of a performance improvement plan? Can’t we just terminate employment for poor performance?
- Employee Management and Investigation
- Question: Does an I-9 form need to be updated when an employee has a name change? What about other forms?
- Question: We received a complaint about harassment. How should we respond?
- Question: Can an employee submit a new W-4 at any time?
- Question: I’ve heard about the DACA program ending. What does this mean and what do I need to do?
- Question: We have good reason to suspect an employee has been stealing from the register. How should we respond?
- Question: Do we need to investigate rumors of harassment even if no one has made a complaint?
- Work Space Environment
- Question: Is serving alcohol at the holiday party a liability? If so, what can we do to protect ourselves?
- Question: Should we ban romantic relationships in the workplace?
- Question: Do we need a company policy related to service animals in the workplace? What if someone asks to bring one in?
- Question: Several employees have complained that one of our managers is regularly abrasive and rude, yelling at employees and sometimes insulting them. Could he be creating a hostile work environment?
- Question: We’re approaching my department’s busy season. Is there anything we can do during this time to help our employees and reduce their stress?
- Question: Are we allowed to look through an employee’s email while they are still employed?
- Question: Can you provide guidance on what personal items are appropriate for display on employee work spaces?
- Hiring an Employee
- Question: We interviewed a candidate who had the right type and length of experience, but spoke with a thick accent. Is it okay to reject a candidate because their accent made it difficult to understand them?
- Question: Can the same person be both an employee and an independent contractor?
- Question: Are job descriptions required by law?
- Question: One of our employees interviewed a candidate today and emailed me afterwards. He was impressed by the candidate, but grew concerned after the candidate mentioned having social anxiety.
- Question: We want to hire an administrative assistant. Can we classify this person as an independent contractor during a 90-day try-out period and then, if they work out, hire them as a full-time employee at the end of the 90 days?
You are running a small business, and you have a few HR questions. Likelihoods are that another small business has, had, or will have a similar question in the future. Wouldn’t it be nice if only one person had to ask, and you could hear the answers to their questions?
Through all of our years working with small businesses, we have been asked for quite a bit of advice when it comes to HR and noticed a pattern of frequently asked questions. We have even dealt with some HR lawsuits that could have easily been avoided. On this page, we share our experiences and solutions with you, so you get a chance to review answers to similar questions you may have. The best part: these are questions we’ve received from actual clients!
Keep scrolling to see the various HR advice we’ve offered to small businesses in California.
* Please keep in mind, the advice below is for a specific scenario and specific company. As California small business attorneys, we always recommend consulting with the appropriate professional about your specific HR questions.
Terminating an Employee
Question: How do I keep an employee at-will but require them to give notice before leaving?
Unfortunately, an employer may not simultaneously utilize the at-will employment provisions and require that an employee provide notice ahead of separation. Instead, I recommend requesting that employees provide notice as a professional courtesy so that you have time to make plans for their replacement or cover their duties, making the transition smoother for their co-workers and customers.
Beyond this, you may remind employees that their notice (or lack thereof) will be taken into consideration should they seek re-employment with the company or should a future employer seek an employment reference. If a future employer contacts you for a reference check, you may share that the individual quit with no notice, or did not provide sufficient notice ahead of their separation per the company’s request.
While you can’t require at-will employees to give notice, giving these reminders may encourage employees to provide notice ahead of their departure
Question: If an employee puts in their notice, can we let them go that day instead of keeping them for the full notice period?
Unless there is a contract or agreement to the contrary, employers are under no obligation to keep an employee on during their resignation notice period or to provide them with compensation for the duration of that period. However, there are a couple of issues to consider before accepting an employee’s resignation early.
First, if you ask the employee not to work the remainder of the notice period and do not pay them for that time, the resignation may become an involuntary termination in the eyes of the state’s unemployment insurance department. Note that the effect of a single claim on your UI tax rate is likely to be small to non-existent. However, if you’re concerned about that, you can pay the employee for the full notice period, but ask them not to come into work.
Second, terminating the employee before their resignation period comes to an end could motivate other employees to forego giving adequate notice in the event they resign. By terminating an employee immediately, rather than letting them earn two more weeks of pay, you’re effectively telling other employees that you don’t honor notice periods. As a result, they may not see the point in giving you that courtesy.
Ultimately, the choice to terminate early – with or without pay – is up to your discretion. There are certainly good reasons to ask an employee not to return to the office once they have offered you notice. Just keep in mind that there may be other reasons to go ahead and pay them for their notice period, even if you don’t want them to continue to work.
Question: What is the purpose of a performance improvement plan? Can’t we just terminate employment for poor performance?
The use of a performance improvement plan (PIP) can help reduce the risk inherent in any termination. A PIP is used to help employees whose performance has slipped, become inconsistent, or otherwise needs improvement.
It’s safest to terminate an employee when you have documentation that justifies the legitimate business reasons for the termination. If you’re terminating for poor performance, this documentation should include past warnings for poor performance, explanations of the consequences for the employee if they didn’t improve, and evidence that the employee failed to do so.
A great way to do all this is with a PIP, which specifies your expectations for employee performance, defines what success looks like going forward, sets regular meetings with the employee to discuss their progress, and explains the consequences for failing to meet and sustain improved performance within an established timeframe.
If the employee continues to underperform or fails to sustain improved performance, you may need to move on to termination. If you’ve been using a PIP, you will have the documentation to demonstrate that you gave them a chance to improve. This record will make it more difficult for the employee to challenge the reason for a termination.
Employee Management and Investigation
Question: Does an I-9 form need to be updated when an employee has a name change? What about other forms?
When an employee changes their legal name, you are not required to update their I-9. However, the US Citizenship and Immigration Services (USCIS) recommends maintaining correct information on I-9s. You can easily update an employee’s I-9 by entering their new legal name in Box A of Section 3, and then sign, date and print your name on the final line. You can request documentation of the name change so you can update the I-9, but employees are not required to provide documentation for this purpose.
That said, there are a few additional administrative steps for both you and the employee to complete:
- Have the employee provide a copy of their updated Social Security card with the new name and use it to update their name in the payroll system; be sure they are identical to avoid SS mismatches.
- Have the employee complete a new W-4. The Internal Revenue Service (IRS) requires that the name on the Social Security card match the name on W-4 and W-2 forms.
- Update the employee’s benefits paperwork. If the change is related to marriage or other qualifying event, the employee may also want to change elections or add or remove a spouse or dependent(s). This is also the best time to make changes to their beneficiary forms as needed.
- If driving is one of their job duties, you may want to request an updated version of their Driver’s License for your records.
- Update company phone lists, email accounts, business cards, badges, uniforms, name plates, etc.
Depending on the circumstances, there may other considerations, but in most cases this list will cover your legal obligations as well as internal documentation.
Question: We received a complaint about harassment. How should we respond?
When a company suspects that an employee has violated its harassment or discrimination policy, we always recommend conducting a complete (and well-documented) investigation into the allegations. This includes speaking with the employee who made the complaint, the accused employee, and any witnesses they name.
The investigation generally includes a series of interviews conducted by an impartial manager, company officer, or Human Resources representative. This individual should approach the investigation process without a presumption of guilt or innocence and with the commitment to treat the situation as fairly as possible. It’s also helpful to have another manager or HR Representative present during the interviews to serve as a third-party witness and to take detailed notes.
The questions asked during the interview should not “lead” a witness toward a particular response and should not be accusatory in nature. They should be unbiased and open-ended. Formulating them in advance is a best practice. It’s also important not to promise a particular outcome to employees participating in the investigation.
Once the investigation interviews are complete, we recommend internally documenting your conclusions and actions taken. Should management determine that the accused employee did in fact violate the company’s harassment or other workplace policy, we recommend taking the appropriate disciplinary measures, which depending on the severity of behavior may include termination of employment. A memo summarizing the findings should be placed in the accused employee’s file.
It is then important to inform both the accused employee and the accuser about the conclusions of the investigation and any disciplinary measures taken. The complaining employee doesn’t need to know the specific disciplinary action, just that appropriate corrective action has been taken.
If the results of the investigation do not warrant terminating the accused employee, we recommend corrective measures such as a written warning and additional training on your harassment policy. It’s also important that you notify both employees about your anti-retaliation policy. In some situations, it is advisable to separate the two employees to limit the potential for future incidents, but care should be taken so this step doesn’t have a negative impact on the employee who raised the complaint.
Companies that do not make changes substantial enough to eliminate harassment once they become aware of it face greater liability in the event of future issues. A company can help reduce risk related to harassment complaints by conducting a quick, thorough, fair and well-documented investigation followed by steps to minimize the risk of such behavior happening in the future.
In addition to the above guidelines, it’s often prudent to consult with your legal counsel upon receipt of any allegations of harassment or discrimination.
Question: Can an employee submit a new W-4 at any time?
Yes, an employee may submit a new W-4 anytime they have changes. Often, they’ll submit a new form when they know they’ll be changing exemptions, adjustments, deductions, or credits on their return.
For example, an employee may want to increase their withholding by decreasing the number of dependents they claim. Or they might want to add dependents to decrease the amount withheld. Life events such as marriage, divorce, and childbirth are common reasons to update a W-4, but employees can generally change their withholding allowances at any time and for any reason.
According to the IRS, employees who are making changes due to a divorce (if they’ve been claiming married status) or for any event that decreases the number of withholding allowances they can claim should submit a new W-4 within 10 days.
After a W-4 is received, the new withholding amount should be put into effect no later than the start of the first payroll period ending on or after the 30th day from when the employee submitted the replacement Form W-4.
Question: I’ve heard about the DACA program ending. What does this mean and what do I need to do?
The Department of Homeland Security (DHS) announced on September 5th that they have initiated the “orderly phase out” of the program known as Deferred Action for Childhood Arrivals (DACA). The DACA program allowed certain people (sometimes called “Dreamers”) who came to the United States as children – and who met several key requirements – to request deferred action from deportation for a period of two years. That deferred action could then be renewed, subject to approval. DACA also provides eligibility for temporary work authorization.
At this time, we don’t recommend that employers take any immediate action related to the DHS announcement. It’s important not to attempt to identify DACA recipients based on I-9s, ask employees whether they are DACA participants, or make staffing decisions based on a potential loss of work authorization. These actions could increase the risk of a charge of employment discrimination.
Please keep in mind that work authorization from the DACA program will not immediately expire due to the program phase out. According to information released by DHS, current DACA recipients will be permitted to retain both the period of deferred action and their employment authorization documents (EADs) until they expire, unless terminated or revoked by DHS. DACA benefits are generally valid for two years from the date of issuance. DHS will process new applications for DACA that were received prior to September 5th. Current DACA recipients with work authorization that will expire any time before March 5, 2018, will also be able to file applications for renewal up until October 5, 2017.
We recommend you complete I-9 re-verification as you normally would when an employee’s temporary documents expire. At the time of expiration, if the employee can’t provide updated work authorization, they would no longer be eligible to work for you.
There are various pieces of legislation that have been introduced that would grant legal status or create a pathway to citizenship for those who were eligible for DACA. At this point we do not know what will come of them, and it’s uncertain what will happen after the phase out of DACA.
You can read more information in this DHS FAQ.
Question: We have good reason to suspect an employee has been stealing from the register. How should we respond?
I would recommend suspending this employee and conducting an internal investigation. You may also want to report the theft to law enforcement depending on the circumstances.
An internal investigation generally includes interviewing any employee who may be involved and any potential witnesses about what they saw . You’re looking for firsthand knowledge, not rumors or speculation. If you have video surveillance, it should be included in your investigation file. Even if the accused employee fails to cooperate, you should still investigate as best you can and document your good faith efforts.
During the interviews, ask the employees for general information about what they know or what they saw. Formulating questions in advance helps ensure that your investigation remains unbiased and open-ended. When interviewing co-workers, be sure not to disclose which employee you suspect of stealing.
These interviews should be confidential to the extent reasonable and conducted in a discreet manner. It’s also good to have a manager or HR Representative in the interviews to serve as a third-party witness and take detailed notes. This documentation may prove helpful if the company is ever challenged regarding this situation and its outcome.
If the results of the investigation reveal that an employee did in fact engage in theft, you may opt to terminate the employee.
Question: Do we need to investigate rumors of harassment even if no one has made a complaint?
Yes, I recommend you investigate. A company always has some inherent liability in relation to discriminatory or harassing comments or behavior. The level of liability usually correlates to the nature, severity, and context of the comments, the position of the employee who made them, and what the employer does or does not do about it.
Since you have knowledge of a potential situation, I recommend you investigate the matter and take appropriate disciplinary action if it turns out your anti-harassment policy was violated. As you conduct the investigation, document the discussions you have as well as your findings, and reassure those you interview that their participation will not result in retaliation.
If you need additional guidance on conducting an investigation of this type, You may want to consider joining our HR Support Center Program.
Question: How do we calculate whether we’re covered under FMLA?
To be covered under FMLA, private sector employers need to employ 50 or more employees for at least 20 calendar workweeks in the current or preceding calendar year. The 20 calendar workweeks do not need to be consecutive.
When counting your employees, you would include any employee whose name appears on your payroll any working day of calendar week, regardless of whether they received compensation for the week.
Once your organization meets the 50 employees-for-20 workweeks threshold, it remains covered until it reaches a point at which it no longer employed 50 employees for 20 (non-consecutive) workweeks in the current and preceding calendar year.
Question: An employee of ours has gone on FMLA leave to care for a family member, and she asked us via email to tell her co-workers the reason she’s taking time off. Is this okay?
In general, when an employee is out, I recommend informing coworkers only that the employee is on a leave of absence. The reasons for the leave are not any of the coworkers’ business, and the employee might not want the reasons known by others. Moreover, sick leave, family leave, and disability laws often specifically protect this information.
In this case, since this employee has specifically asked you to inform the other employees that she will be out on a “family care” leave, and you have this request from the employee in writing, you should be fine sharing this information. In the absence of any such written request from an employee, however, I would recommend defaulting to stating only that an employee is off work on a leave of absence, letting the employee share additional information at their discretion.
Work Space Environment
Question: Is serving alcohol at the holiday party a liability? If so, what can we do to protect ourselves?
Yes, alcohol can be a liability. Partygoers who overindulge could cause an accident at or after the party, or they might act in ways that violate your harassment policy.
There are steps you can take to protect both yourself and your employees. Here are some practices you might consider:
Ahead of Time
- Employers may be liable for employee misconduct and negligence when the employee is acting “in the course and scope of employment,” so make these kinds of events optional and clearly communicate that attendance is neither expected nor required.
- Don’t plan to have any work-related activities at the event. To further support the non-work nature of the event, hold it off-site and outside of regular business hours, and allow employees to bring a guest.
- Set expectations around respectful behavior and encourage employees to drink responsibly. Remind employees that company policies, including harassment and other conduct policies, apply at the event.
- Have a plan to ensure that no minors or visibly intoxicated attendees are served alcohol. If possible, hire professional servers (or hold the event at a staffed facility) who will, as part of their job, politely refuse to serve anyone who they perceive has had enough to drink.
At the Event
- Provide ample food and non-alcoholic beverages, both for safety reasons and so non-drinkers know you’ve given them consideration.
- Offer a cash bar where employees purchase the alcohol. This will reduce the likelihood of a claim that the employer provided alcohol directly to employees. It will also reduce consumption.
- Provide employees with a set number of drink tickets so that each attendee is limited in the number of alcoholic drinks they will be served.
- Plan for how employees who have been drinking will get home. This may involve providing taxis or public transit options at no cost to the employees, arranging for group transportation, or encouraging employees to designate a driver at the beginning of the event.
- Even if you don’t want or plan to provide taxi service, don’t think twice about calling and paying for one if an intoxicated employee has no way home other than driving themselves. To facilitate this, someone from management can be designated to stay until the end and maintain their own sobriety to ensure that everyone gets home safe.
While these steps will not eliminate all the risks, they can help reduce liability and help your employees celebrate the year and their achievements safely and responsibly.
Question: Should we ban romantic relationships in the workplace?
Depending on the nature of the relationship, how you handle workplace romances is mostly up to your organization’s preference or policy.
If the employees do not report to one another and are engaged in a mutually consenting relationship, no action may be needed. Some organizations prefer to ban office dating, but I find this difficult or impossible to enforce and often not worth the time and effort. It can also create a Big Brother-like feeling, reducing trust between management and employees, and often forcing relationships to be kept secret. Some employers choose to use a “Consensual Relationship Agreement” when they know employees are dating, which establishes that both parties are part of the relationship by choice, and lays out some ground rules for how to behave.
Instead of either of these, I recommend communicating to the employees your relevant workplace policies (e.g. harassment) and your expectations regarding behavior in the workplace, and leaving it at that. In most cases, the less time management spends delving into employees’ personal lives, the better.
That said, I do recommend prohibiting managers from dating subordinate employees as a standard policy, even if layers of management separate them. There could be issues with preferential treatment and complaints of harassment if the relationship ends. These situations could expose your organization to increased risk.
If you decide to prohibit all employee dating, be careful when wording your policy. Outright “non-fraternization” policies have the potential to violate Section 7 of the National Labor Relations Act, which protects employees’ rights to engage in concerted activity. Courts have found that use of the word “fraternize” without additional explanation could potentially discourage employees from exercising their rights, so I recommend language that specifically refers to “employee dating.”
You do not need to have a specific policy on service animals for your employees. If a request comes up, I would recommend relying on your disability accommodation process and engaging in the interactive process.
First, determine if the employee has a covered disability as defined by the Americans with Disabilities Act (ADA). The best way to do this is to provide the employee with a medical inquiry form that they can have completed by their doctor. This form will help you ascertain what accommodation the employee needs to do their job and whether you, as the employer, can accommodate it or suggest alternatives.
If the employee is not disabled as defined by the ADA, you are not required to allow them to bring an animal to work. But if they provide documentation supporting their need for a service animal, you should attempt to accommodate the employee. Note that the ADA is very broad in its definition of a disability, which is why we recommend that you rely on the medical opinion of your employee’s doctor to determine whether or not a disability exists.
While emotional support animals, comfort animals, or therapy animals (I’ll call them all support animals) are often used as part of a medical treatment plan, they are not considered service animals under the ADA. These support animals provide companionship, relieve loneliness, and sometimes help with depression, anxiety, and certain phobias, but do not have special training to perform tasks that assist people with disabilities. As a result, their presence is not considered a reasonable accommodation, even with a doctor’s note.
When an employee requests permission to bring a service or support animal to work as a reasonable accommodation for a disability, the employer should recognize that the only basis for denial of this request is:
- The employee is not a qualified person with a disability as defined by the ADA, the Rehabilitation Act, or state law;
- The animal does not meet the definition of a service animal in the ADA or other relevant law;
- The presence of the service animal would place an undue burden on the employer; or,
- The presence of the service animal would interfere with the employer’s ability to conduct business.
Question: Several employees have complained that one of our managers is regularly abrasive and rude, yelling at employees and sometimes insulting them. Could he be creating a hostile work environment?
Possibly, but not necessarily. It sounds like this manager’s abrasive and rude manner has made employees feel uncomfortable and affected morale. It’s worth addressing on those grounds alone, but whether it creates a hostile work environment depends on a few additional factors.
A hostile work environment occurs when unlawful harassment in the workplace either becomes a condition of continued employment or becomes severe or pervasive enough that a reasonable person would consider the work environment intimidating, hostile, or abusive.
For workplace harassment to be unlawful, it must be unwelcome and based on a protected class such as race, age, religion, national origin, disability, genetic information, or sex (which includes pregnancy, sexual orientation, and gender identity). In other words, unlawful harassment is unlawful because it’s unwelcome and discriminatory.
So, if this manager is yelling and insulting only female employees or those of a specific ethnic group, then the behavior would likely be creating a hostile work environment because it’s both unwelcome and based on a protected class. If the manager is rude to everyone, or his bad behavior doesn’t seem to be aimed in any particular direction, then you likely don’t have a hostile work environment in the eyes of federal employment law – simply a problem employee.
In any case, don’t make assumptions one way or the other until you’ve had a chance to investigate (which you should do promptly). Federal law not only prohibits discrimination, but obligates employers to prevent and stop harassment when it’s based on these protected characteristics, whether it’s coming from supervisors, peers, or even customers.
For more information about conducting an investigation, see our Harassment Investigation Guide on the Support Center!
Question: We’re approaching my department’s busy season. Is there anything we can do during this time to help our employees and reduce their stress?
Yes! Here are a few things you can do to make the busy season run as smoothly and stress-free as possible:
Remove or reassign non-essential work duties: Before the busy season begins, ask employees in your department to make a list of tasks that other departments could feasibly handle for them. Then work on transitioning those tasks or simply hold off on non-essential tasks until things slow down.
Allow for flexible scheduling: If employees need to work longer hours on particular days, consider, if possible, allowing them to work fewer hours other days of the week. But be aware that some states, like California, have daily overtime laws.
Budget for overtime: Employees may need to work extra hours to get their job done, so allow them to work overtime if you (and they) can swing it. And if you’re pretty sure overtime will be necessary, try to make sure employees know that ahead of time, so they can plan accordingly.
Ensure all equipment is fast and reliable: Before an employee will be putting in a lot of work, have the IT team do a little maintenance on their computers and other commonly used devices. It’s important to identify, troubleshoot, and correct any slow or non-working issues before the employee gets slammed with work. It’s also important to make sure IT knows that if an extra busy employee begins experiencing technical issues during the busy season, their issues should be expedited.
Question: Are we allowed to look through an employee’s email while they are still employed?
The short answer is yes, you can monitor employee email. As a general rule, employees should not have an expectation of privacy when using company computers or email accounts. That said, the law is not perfectly cut and dry, so you should have both a legitimate business reason for doing so and a policy that puts employees on notice that you do – or could – review their email.
If you decide to monitor employee email, I recommend that you review your handbook policies, especially any that address company equipment or email usage. You should include a policy that says something along the lines of, “All Company-supplied technology, including computer systems and Company-related work records, belong to the Company and not the employee. The Company routinely monitors usage patterns for its email and internet communications. Although encouraged to explore the resources available on the Internet, employees should use discretion in the sites that are accessed.”
If you monitor company email, you should also be consistent in how you do so. For example, if you’re routinely reviewing emails to ensure that employees aren’t conducting personal business on company time, I would recommend that you do so for all employees or everyone in a specific department.
Question: Can you provide guidance on what personal items are appropriate for display on employee work spaces?
We’d like workstations to look professional and organized, and we’re concerned that some currently displayed items (small toys, etc.) give the office an unprofessional and cluttered feel.
Employers typically decide what amount and type of personal items are appropriate based on the culture of the organization. In a workplace that needs to maintain a formal and professional image — perhaps because it has frequent visitors — the employer may want individual workspaces to look neat and tidy. Casual workplaces probably don’t need the same restrictions. Basically, it comes down to what you’re comfortable allowing.
Unless there is an ongoing problem with what employees are putting in their work areas, I recommend against having a specific policy on the matter. Flexibility is often best as it allows employees to be creative and make their workspaces their own. For what it’s worth, when there are things in the workplace to psychologically interact with (like plants, personal photos, and art), employees tend to be more productive and engaged.
Of course, you’d want to prohibit anything that is harassing, offensive, or causes a workplace distraction. These prohibitions, however, should already be covered in your code of conduct and harassment policies.
Hiring an Employee
Question: We interviewed a candidate who had the right type and length of experience, but spoke with a thick accent. Is it okay to reject a candidate because their accent made it difficult to understand them?
There is risk in rejecting the candidate based on their accent, as this may be perceived as national-origin discrimination, which is illegal under Title VII of the Civil Rights Act. The Equal Employment Opportunity Commission (EEOC) enforces Title VII, and says the following regarding accent discrimination:
In assessing whether an individual’s accent materially interferes with the ability to perform job duties, the key is to distinguish a merely discernible accent from one that actually interferes with the spoken communication skills necessary for the job.
“Materially interferes” is the standard that will apply, but we don’t have a hard and fast definition of what that means. If you are confident that the candidate’s accent will actually prevent them from performing the functions of the job, then you could eliminate them on that basis. But if you are only speculating that it could be a problem, or are thinking it might rub other employees the wrong way, it should not be a basis for your decision.
For instance, if you were hiring for a receptionist who will interact frequently with clients on the telephone, and you had to ask the candidate to repeat themselves multiple times during the interview because they were legitimately difficult to understand, then the accent would likely be an acceptable reason to eliminate that candidate. On the other hand, if you were hiring for a dishwasher, delivery driver, software programmer, or other position where oral communication was less essential, then the accent would not be a valid reason to reject the candidate.
Question: Can the same person be both an employee and an independent contractor?
According to IRS guidelines, it is possible to have a W-2 employee who also performs work as a 1099 independent contractor so long as the individual is performing completely different duties that would qualify them as an independent contractor.
Some legitimate examples that we have seen of this circumstance are:
• A Receptionist also owns a cleaning service business with their spouse. The company contracts with the team to perform janitorial services after hours for the office.
• A Sales Manager also performs graphic design work for several local businesses after hours. The company contracts with the individual to create a new logo for the company.
• A Maintenance Technician also owns a fabricating business of their own. The company contracts with the individual to fabricate equipment for the company.
An employee owning their own business is not a requirement, but rather one of the factors to consider when determining if someone may be properly classified as an independent contractor. If you feel confident in the IRS criteria on the whole, you may classify their separate work as independent contractor work. But, be sure! It is widely believed among tax professionals that having a worker receive both a W-2 and 1099 increases the likelihood of an IRS audit.
If you’d like to learn more about the IRS test for independent contractor classification, you sign up and check out our 2-Minute HR Training on the topic or check out the Independent Contractor Classification Guide on the HR Support Center.
Question: Are job descriptions required by law?
Job descriptions are not required by law, but they’re certainly great to have and serve several purposes.
First, a job description, when accurately written, should reflect the actual work done. The applicant or employee can see what will be expected of them and to what they’ll be held accountable. The job description helps eliminate any confusion about what job duties are assigned to the employee. It will also prove useful when conducting performance evaluations and goal setting, as you will have a clear description of what the employee is expected to accomplish in their position.
Second, a well-written job description will list the essential functions of the job and the knowledge, skills, and abilities required to do it. This information will be useful as documentation in the event an employee misrepresented their qualifications for the position or is simply not performing to the expected standard. With a clear job description, you’d be able to terminate the employee with less risk of an unlawful termination claim.
Finally, a job description should indicate the basic expectations for the person in the position, including how many hours per week you expect from an employee, whom they report to, and whether the position is non-exempt or exempt. This allows an employee to be aware of the time commitment, whether to expect overtime pay, and whom they should go to with questions.
He wondered whether the anxiety could affect the candidate’s ability to do the job. I reminded the employee that we’re an Equal Opportunity Employer and we don’t discriminate on any basis prohibited by law, including disability. Instead, we select candidates based on skill and qualification. Is there anything else that I should have done?
You are correct to focus on skills and qualifications during the interview process. As you noted, employees are protected from discrimination based on having a disability. This also includes having a record of a disability or simply being perceived as disabled.
It’s important not to make assumptions about a candidate’s ability to perform their job based on their having disclosed that they have a disability or other health condition. An employer can ask all candidates if they are able to perform the job either with or without accommodation; as a best practice, however, we recommend asking this on the written application rather than during the interview. If a candidate at the post-offer stage requests an accommodation to perform the essential functions of their job, then you would engage them in the interactive process to determine whether you could provide an accommodation.
In the future, you should counsel employees who conduct interviews not to solicit or document information that a candidate discloses regarding their inclusions in any protected class (e.g. disability, sexual orientation, national origin). This will help you avoid the appearance that such information was a factor in the employment decision.
For the current situation, I would recommend just continuing to focus on the skills and qualifications of the candidates that you have. If you do choose another candidate, you should able to justify the decision based on those comparative skills and qualifications and be able to show that the chosen candidate was truly a better fit.
Question: We want to hire an administrative assistant. Can we classify this person as an independent contractor during a 90-day try-out period and then, if they work out, hire them as a full-time employee at the end of the 90 days?
The short answer is no.
It’s highly unlikely that an administrative assistant would meet the criteria for classification as an independent contractor. The IRS and the U.S. Department of Labor, along with state agencies, have specific criteria for determining who is an employee and who is an independent contractor. These criteria focus on the overall relationship workers have with their employer, with particular attention to who controls when, where, and how the job gets done, as well as who has the opportunity for financial profit or loss. Administrative assistants typically do not have that level of control over their work, so they’ll almost always be classified as employees.
I understand that you’d like to hire the individual on a trial basis, with the possibility of continued employment. You can do this by offering them temporary employment. During the 90-day period, make sure that you provide the employee with clear expectations for the position and success in the role. If you elect to end their employment once the 90 days are up, you should document why they are not being considered for continued employment.
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