Socrateaser, you answered an employment question for me that expressed California Employment Law. Does this translate completely to the State of New Mexico? I reside in New Mexico. I need information that applies to New Mexico Employment laws.
In Harger v. Structural Services, Inc., 916 P. 2d 1324 (NM 4/17/1996), the New Mexico Supreme Court writes:
As can be seen from the above definition, the right-to control the worker's physical conduct is the dividing line between an employment or independent contractor relationship. If you are prepared to to enter into a contract with the caregiver under which it is agreed that the caregiver can undertake his/her duties with regard to the care of your mother in any manner that the caregiver sees fit, and that your only interest in such care is that your mother is maintained in a reasonably comfortable manner, then you could have an independent contractor relationship with the caregiver.
However, you could also be found to have engaged in elder abuse, if the caregiver fails to provide reasonable care -- because you would be effectively setting up conditions under which you would be ceeding your authority and responsibility for your mother's care to an unlicensed third party.
If your caregiver is a Certified Nurse Aid, and has successfully passed the Caregiver Screening Program, then maybe that would help demonstrate the sort of necessary independence to confirm an independent contractor relationship. However, again, in my experience, none of these things are particularly impressive to the Internal Reveune Service -- because the government has a very strong incentive in trying to transform everyone into an employee. All I can say is that it's always a dicey issue, many people ignore it entirely, and simply take their chances that the caregiver won't create a problem, freqeuently caregivers are not only unlicensed, have no criminal background check, but also are undocumented aliens who operate "under the radar," and while they may be very good at what they do, they may also be a ticking time bomb, waiting to explode in the face of the "employer."
I'd really like to give you a perfect workaround, but there isn't any. The old saying, "Ya pays yer money and ya takes yer chances," is fully applicable here.
Hope this helps.
OK. It all gets clearer and muckier all at once. I read that if one is self-employed, one is responsible for oneself in all aspects of being in and around a person or their property (re: their own health and well being) and that this type of hire is the most reasonable situation or solution if one does not desire becoming an employer. Then we have the Feds. Then we have human nature. I have an agency who is free to guide their employees however they wish. My comeback has been I wish to have the more reliable persons in our home regularly. Nevertheless, unless they desire to make the MONEY, we are subject to a constant stream of strangers. They usually do not provide nursing on a daily basis. Which prompts one to feel the strain of providing responsible care for ones relative. The only relief is not being an employer. We are still reliant on their screening their employees and their particular choices. What say you?
I do plan to propose this to an RN. I just hope that I can have a caregiver without repercussion. Mother will only get temporary care from Medicare and then the private pay kicks in on the 21st day in an institution. The cost so far has been comparable and at times less to have in-home care. I think as she progresses, we will be able to tailor her care to where it is consistently less than an institution's. So my final question is: Would I be legally responsible if I were to purchase service from a self-employed caregiver (not an independent contractor).
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