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socrateaser
socrateaser, Lawyer
Category: California Employment Law
Satisfied Customers: 34363
Experience:  Retired (mostly)
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Socrateaser, can you give me an alternative answer to hiring

Resolved Question:

Socrateaser, can you give me an alternative answer to hiring not as a independent contractor but perhaps just an independent or individual?
Submitted: 1 year ago.
Category: California Employment Law
Expert:  socrateaser replied 1 year ago.
Therer are only two means of hiring a person to perform personal services: independent contractor, or employee. There is no other option. A worker is an employee, in general, if the person for whom labor is performed, has the right to control the means and method of the worker's labor.

Except where a caregiver is a government licensed professional (physician, registered nurse, chiropractor, dentist, etc.), who has specific skills and training which transcends that of an ordinary person, it will be practically impossible for you to avoid the fact that while this person is caring for your parent in her or your home, that you have the right to control how that care is given. You don't even have to exercise your right to control. All that is necessary is that the right exists -- and the independent contractor is transformed into an employee -- and you are at extreme risk of fines and taxes from the state and federal government if the caregiver decides that he/she would prefer to be an employee.

If the caregiver wants to create a corporation or LLC and then employ him/herself, remit payroll taxes (Social Security, Medicare, unemployment insurance contributions, workers compensation, etc.), then that would work, because the caregiver would be his/her own employer. But, otherwise, you have to decide to either risk the possibility of problems if the caregiver decides that it's in his or her interest to file an unemployment insurance claim at some future date -- or if the caregiver is injured on your property and wants to try to obtain workers compensation benefits -- or, bite the bullet and treat the caregiver as an employee from day one.

You could try to find a staffing agency that is willing to employ the caregiver -- but, the point is that someone needs to be the employer, if you want to avoid trouble with the government. I have seen too many people get scr**** horribly in exactly the situation you describe.

Ultimately, it's your choice as to whether or not to take the risk and employ the caregiver as an independent contractor. But, if it were me, I wouldn't do it, because it's just not worth the risk.

Hope this helps.
socrateaser, Lawyer
Satisfied Customers: 34363
Experience: Retired (mostly)
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