This paper contains information that will identify and discuss the employer-employee relationship. It is intended to establish the point in which a prospective applicant becomes an employee. It will argue the difference between a contractor and an employee. It is also aimed to define the legal implications and obligations that exist in the employer-employee relationship. Finally, it will highlight some of the laws that concentrate on the employer-employee relationship.
Establishing the Employer – Employee Relationship The question has frequently been asked; “Who is an employee? ” In simple terms, an employee is defined as someone who does work for someone else and receives compensation. According to Walsh (2007), depending on the legal basis for an employee’s claim, the applicable criteria can differ. Just because a worker is considered an employee because of wage laws doesn’t mean they have the right to sue an employer for discrimination (p. 48).
Several factors have to be considered before that right is established which will be discussed at a later time. Methods such as acquiring workers through temporary agencies or contracting them in addition to the complications of a company’s structure can make it unclear as to what entity is responsible if employees’ rights are disregarded. There are some legal implications in instances where a company can be found liable for violating workers rights who are not their employees.
In those situations the courts can apply what’s called the multi-employer doctrine stating in instances of multi-employer work areas that “an employer who creates a safety hazard can be liable under the Act regardless of whether the employees threatened are its own or those of another employer on the site” (Walsh, 2007, 9. 55). The relationship between an employer and employee can sometimes be unclear and complex. Becoming An Employee An employer typically utilizes several recruiting methods such as job postings, job fairs and “want-ads” to communication job opportunities to the public.
Interested parties will apply. At that point, they are considered applicants. Qualified applicants will be identified and typically contacted and screened by a recruiter. The recruiter will then identify the strongest candidates for consideration by the hiring manager. Through the interview process the best person is selected to fill the position. As part of the hiring process an offer is extended to the selected candidate. The written offer should include the salary for the position, start date, that employment is “at will”, and other conditions (e. . , physical, security clearance, pass background investigation and medical exam). It is possible that a negotiation of the terms will take place.
The written offer should also specify a timeframe in which to accept. Acceptance of the offer can be in orally, in writing or by starting work under the terms of the offer. Upon acceptance of the offer a potential applicant becomes an employee and the employer – employee relationship is begins. Only when all conditions have been met (drug test or physical i. e. ) Contractor vs. Employee What is the difference between a contractor and an employee? In many cases the answer to this questions is not clear. According to “IRS Business Independent Contractor Defined” (2012) “the general rule is that an individual is an independent contractor if the payer has the right to control or direct only the result of the work and not what will be done and how it will be done. ” (Small Business/Self-Employed). Independent contractors typically have written agreements and receive a flat for their work.
An employee is anyone who performs services to an employer who has the right to control the means of production. Employees receive an hourly wage or salary and benefits. Employees can have a legal basis for claims under the Fair Labor Standards Act, Workers’ Compensation and other labor Acts. Employers are required to withhold income taxes and pay their share of an employee’s FICA. Employers are also responsible for the actions of their employees.
Factors to Consider As mentioned earlier, there are several factors to consider when determining whether a worker is an independent contractor or an employee. To determine an employee’s status, courts have commonly used the hybrid and economic realities test (also known as the common law test). There is not always consistency when making the determination between state and federal agencies and the IRS. The most essential criteria used to determine whether a worker is a contractor or employee is the right of control over how, when and where the work is done.
Another issue is whether the worker looks like someone that is in business for them self and controlling their own work. Also considered is how long the relationship will continue and whether the work important to the business. Under the common law definition temporary workers who are doing the same work as permanent employees for an extended time and volunteers who receive considerable compensation for their services can be considered employees. Paper would be strong if you talked about IRS rule, common law or economic realities test.