Drawing Line between Employee, Volunteer and All Roles in Between

Daily Herald (Arlington Heights, IL), April 12, 2003 | Go to article overview

Drawing Line between Employee, Volunteer and All Roles in Between


Byline: Jordan I. Shifrin

Frequently, a board of directors will wrestle with the issue of hiring one of its own (directors or residents) to provide services. This will then generate a parallel discussion about the need for maintaining worker's compensation insurance.

Without elaborating on the issue of conflict of interest (there must be a full disclosure to all of the members of the association if the director or his immediate family has an economic interest, etc. in a decision), the real issue concerns the differences between a mere volunteer, an employee or agent of the association or a true independent contractor for liability purposes.

Because of the current scarcity of insurance for associations and the tightening of Internal Revenue restrictions, coupled with ever-increasing exposure for liability makes this a difficult question, requiring a careful analysis.

For example, if a director volunteers for no compensation to change light bulbs, are they a pure volunteer? What if they are reimbursed for expenses? If a painter pays his employees in cash, does the association take withholding; send a W-9? Are the employees really subcontractors?

These questions frequently arise and merely create more questions.

First, a board of directors must be clear on its relationships with the various parties that provide services.

Second, there should be written agreements with all third parties, spelling out the details of the relationship.

Third, if the person performing services is deemed an employee, then all aspects of state and federal employment law would apply.

Sometimes associations try to cut corners and save money and do not diligently establish these relationships. This could result in an association defending a liability claim out of its own pocket because of a lack of insurance.

If there is a severe injury, this could cause a financial catastrophe.

Before authorizing any person to provide services for an Association, the Board should look at the following:

- Who will file the federal employment tax returns (form 1099 or W-2), the Association or the contractor?

- Has the association treated any other worker holding a substantially similar position as an employee or independent contractor?

- Who does the worker(s) take direction from and who provides the training?

- Who is responsible for hiring, paying or supervising subordinates?

- Are the subordinates assistants or subcontractors?

- Who outlines the specific duties, monitors quality control and reprimands or withholds payment for sub-standard performance?

- Are oral or written progress reports required?

- Is there a written contract or job specifications? …

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