If I call my worker an independent contractor, that's good enough ... right?

No.  Unfortunately, it is not.  Both federal and state governments look closely as to how a worker is classified.  Understandably, the driving focus is money.  An employer need not withhold or pay taxes (including expensive payroll taxes such as Social Security and Medicare) for an independent contractor, and it will have fewer legal obligations to an independent contractor than to an employee.  As such, it is appealing to label a worker an independent contractor.  However, it is not that simple.  There are many tests to determine whether a worker qualifies as an independent contractor.

Figuring out how to classify and treat so as to avoid agency investigation and audits can be a complicated undertaking.  There are numerous agencies involved with the investigation of misclassified workers.  These include the IRS, The U.S. Department of Labor, the state unemployment compensation board, the state's workers' compensation insurance agency, the state tax department, and the state department of labor.  To avoid problems such as audits, fines, and taxes, you should learn the rules of all of the following agencies before you hire a worker.

PRACTICE TIP:  Some of the strategies to avoid problems include hiring incorporated independent contractors, not exercising control over independent contractors, and using an employee leasing company.  Consult an employment attorney to review your individual work situation.

Social Media and Your Employees

Can you discipline employees who post negative comments on Facebook, Twitter, or other social networking sites?

Well ... it depends on the topic of the comments and whether the employee is engaging in protected “concerted activity.” If you are like most employers, your first reaction may be immediately to discipline or even terminate the employee.  Assuming that your employee is “at will,” you may be within your legal rights to take some action based on Facebook or other social media postings.  But, employers have been targets of recent court and National Labor Relations Board (NLRB) cases when they terminated employees who “mouthed off” about their workplace online. Specifically, if an employee is disciplined for inappropriate use of social media, she may have a claim under the National Labor Relationships Act (NLRA) if her social media post addresses terms and conditions of employment. 

PRACTICE TIP:  When determining whether to discipline and/or terminate an employee based on social media use, review your policy first.  Does your handbook clearly provide for prohibitions on inappropriate social media use?  If so, then review the message, its context, whether it's protected speech, and make a case-by-case determination. 

Does the ADA apply to applicants?

Yes, yes it does.

In the case of disabled job candidates, your accommodation obligations under the Americans with Disabilities Act (ADA) certainly apply.  As an initial matter, you may have to accommodate a disabled person in the application process, for example, by making your facilities accessible or providing extra time to take a test.  Second, you may have to offer an accommodation that would allow the applicant to perform the essential functions of the job.

You can show your commitment to complying with the ADA by taking a few simple steps to make your workplace accessible and friendly to the disabled.  This approach makes good business sense and can protect you against liability for disability discrimination.

PRACTICE TIP:  Even if unsure as to whether an applicant and/or employee has a qualifying disability, engage in the interactive process.  The employer and employee work together to identify opportunities and arrive at a reasonable accommodation, if possible.