Q: Can senior homecare company in NY hire independent contractors to work in client homes? Isn't this illegal in NY?

A: NY has enacted something called the Domestic Workers’ Bill of Rights, among other provisions, this law gives domestic workers:

The right to overtime pay at time-and-a-half after 40 hours of work in a week, or 44 hours for workers who live in their employer’s home;

A day of rest (24 hours) every seven days, or overtime pay if they agree to work on that day;

Three paid days of rest each year after one year of work for the same employer; and

Protection under New York State Human Rights Law, and the creation of a special cause of action for domestic workers who suffer sexual or racial harassment.

Here is what the NYS Department of Labor says about the distinction between Independent Contractors and Employees:

Independent Contractors

It is vital that you understand the distinction between independent contractors and employees. This affects you and your business.

You may genuinely believe that you have hired people to perform services for you as independent contractors. You may discover that by law they are considered employees and that you are liable for unemployment insurance contributions and interest.

Whether the relationship is one of employer-employee will depend on several factors. These include how much supervision, direction and control you have over the services.

The Employer-Employee Relationship

The courts have found that no single factor or group of factors conclusively define an employer-employee relationship. Rather, all factors are reviewed to determine the degree of supervision, direction and control exercised over the services. Generally, an employer controls what will be done, i.e. the manner, means, and results.

An employer-employee relationship may exist if you:

Choose when, where, and how they perform services

Provide facilities, equipment, tools and supplies

Directly supervise the services

Set the hours of work

Require exclusive services (An individual cannot work for your competitors while working for you.)

Set the rate of pay

Require attendance at meetings and/or training sessions

Ask for oral or written reports

Reserve the right to review and approve the work product

Evaluate job performance

Require prior permission for absences

Have the right to hire and fire

How an individual is compensated is another indicator of worker status. Employees typically are paid a salary, an hourly rate of pay or a draw against future commissions with no requirement for repayment of unearned commissions. Employees may also receive certain fringe benefits, including an allowance or reimbursement for business or travel expenses.

The nature of the services performed is also key to deciding if a worker is an employee or an independent contractor.

Unskilled or casual workers are usually employees because their labor is often supervised. However, even professionals such as doctors and lawyers, who have much freedom to perform their duties, may be employees if they are subject to significant control.

The courts have also found that workers may be employees and that an employment relationship may exist if the employer controls important aspects of the services performed, other than results and means.

For example, a referral agency usually does not directly supervise the individuals it refers for assignments. It could be their employer, however, if it controls such important aspects of the services as:

Client contact

Billing and collection from clients

The individual's wages

A: A home health aide and domestic caregiver are not one and the same - although one could do the other's job most times but not the other way around in most settings. The following link will provide some initial guidance.

https://labor.ny.gov/legal/laws/pdf/domestic-workers/facts-for-domestic-workers.pdf

You should spend time with an employment lawyer discussing exactly what you will be doing, what percentage of the time, when, and where. The specific facts of your case will determine how you are paid.

What you are called is not as important as precisely what you will be doing, what percentage of the time you will be doing it, what other chores you may be doing, and who will control exactly what and how you do it. Good luck.