Revisions in law may have altered contractor's status

Q. I have been working as a contractor for almost six years, in the same role with the same company. I am independent and have never signed a contract. I submit an invoice twice a month. I have all of the responsibilities of a regular employee but no benefits or recourse to anything and can be terminated without severance. Is this legal?

A. This question plagues many employers and employees. The difference between being an employee and being a contractor has undergone revisions under the law over the last few years.

I consulted with Kristin McGurn, a partner in the Boston office of law firm Seyfarth Shaw. McGurn said that, "In general, companies can elect to provide certain benefits for employees that are not offered to contractors. The bigger question you raise, however, is whether you really qualify as an employee and, therefore, are entitled to the same benefits and other terms that employees receive. Even though your role with the company has been the same for six years, your status may have changed in the eyes of the law."

You may be considered an employee according to a 2004 amendment to a Massachusetts statute that addresses whether a worker is an employee or an independent contractor. Anthony Califano, a Seyfarth colleague in the labor and employment practice, explained that Massachusetts law now presumes that a worker is an employee unless several very specific criteria are met. They include: (1) the worker is free from control and direction in the performance of his services; and (2) the service is performed outside the usual course of the company’s business; and (3) the worker is customarily engaged in an independently established business.

All three factors must be met for a worker to be considered an independent contractor. According to the attorney general's office, the new Massachusetts statute excludes far more workers from independent contractor status than are disqualified under federal law and Massachusetts common law.

Having the same responsibilities as your peers certainly is a factor that suggests employment. So does the fact that you operate without a contract. A fundamental question, though, is whether the company has the right to direct the manner and means by which you perform the services you render. A true independent contractor generally is free to dictate the when, where, and how of his or her performance. By contrast, an employee has those specifics dictated by his/her boss.

Given the amendments to the independent contractor statute, another fundamental question is whether the services you provide are different from the company's usual course of business. You have the same responsibilities as company employees, so it seems you may fail this test. The location where a worker performed his/her services used to be relevant to the independent contractor analysis, but it is no longer a factor under the statute. An independent contractor also must be customarily engaged in an independent business, and the fact that you have worked for this company for so many years may indicate that you are not.

McGurn added, "Some additional factors that might be considered to determine whether you truly are an independent contractor include whether you set your own schedule; you provide your own tools and equipment; you cannot be terminated at-will or without cause; you are free to hire and fire employees or subcontractors to perform your work; you have the ability to negotiate the terms and price of your work; you advertise your services and hold yourself out to the public as ready and willing to perform services; you render services to the company for a relatively short period of time; and you regularly perform services for other companies."

Consequences for misclassifying workers can be severe, including potential civil and criminal penalties and multiple damages and attorneys' fee awards in private litigation.

A. Welcome to the joys and challenges of balancing work and parenthood. The two issues - part-time work and child care, can both be solved by effectively using the same tool - networking. Most people are comfortable tapping into their network to solve some of life's daily challenges like finding a dentist, hairdresser, and even stellar child care. However they often hesitate to use networking in making a career move. Both challenges can be solved by using the same networking techniques and often by reaching out to the same core group of contacts, friends, family, and former colleagues.

Assuming you left your former employer on good terms, I also recommend reconnecting with them. Start with those colleagues you are closest to and who know your skills - maybe a manager or a member from your department. Take the time to present your goals and solicit feedback and reactions to your plan. They should be able to give you a crash course in which organizations are hot and have a need for staff, or they can introduce you to others they know in similar companies or industries so your network can grow. Your former employer may even have work to be done which can be configured into a part-time opportunity to fit into your schedule.

Develop a list of target companies to share with your network, and ask them to help you get to the right people. With these personal referrals, people are more apt to listen to the story of why you want part time, and just how effective you will be on the job. Ask your networking contacts to e-mail introductions to their contacts, with your resume attached.

Before you start networking, spend some time thinking about what you want from a job. You say you want a part-time opportunity, but try and define that even further. Are you looking for a part-time position that could turn into your full-time job? Will this be a professional role, or something less than that? Successfully finding professional roles involve a more strategic approach to the job search.

You can also explain the type of job you seek in your cover letter to give potential employers insight into the position you want. Neither your cover letter nor your resume needs to include why you left your full-time job or why you're looking for part-time work.

A. Certified nursing assistants are in high demand, especially in elder care. Labor forecasts suggest this will continue to be true as the aging population needs more long-term care. CNAs, also known as nurses' aides, or home health aides, work under the supervision of a nurse, and provide patient assistance with basic care services including bathing and feeding. They also assist nurses with medical equipment, and check the vital signs of their patients.

CNAs have typically completed a 6- to 12-week training program at a community college or a medical facility. Compensation is usually based on years of experience and type of healthcare facility.

You have many options to continue a career in nursing. Certainly, your two years experience has given you a broad view of all that happens in healthcare, and the type of support you need to be prepared to give.

Completing additional coursework is the first step toward becoming a licensed practical nurse, said Elaine Goldman, a career coach at JVS in Boston. Goldman works with organizations supporting their employees’ career development plans, by helping the employee figure out their next career steps and charting a course to make it happen. The training programs consist of coursework in biology, anatomy, English, math, and computer. The computer skills become more important, as many of the tests are offered online. Clinical rotations are also part of the program, as you test out the additional knowledge you have gained in the classroom in a real healthcare setting.

There are programs available online offering coursework toward an LPN, but you do miss the clinical component. Working while taking challenging coursework is a test of your commitment to the field. Talking to your current employer about their commitment to training their workforce is a great first step. Many healthcare organizations support current employees as they develop their skills. Your manager, the human resources department, or an employee relations consultant should be able to help you locate internal or external resources to start taking the coursework you need to prepare for a program. Some Boston area hospitals will pay for your continued education in nursing in exchange for a commitment to work there after you have completed your degree. Other healthcare institutions will give you paid time off to take course work.

If you are looking for geographic mobility, these careers also offer that added benefit. A web search lists organizations across the country looking for professional staff from all levels of nursing care.

Elaine Varelas is managing partner at Keystone Partners, a career management firm in Boston.

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