November 16, 2015

Independent Contractor or Employee? (Or, am I like an Uber driver?)

INDEPENDENT CONTRACTOR OR EMPLOYEE?
            Are you an independent contractor or an employee? How do you find out and why does it matter anyway?
"Independent contractor" and "employee" are not just insignificant names or labels in Maryland. This distinction is legally important and just calling someone by one name or the other,or reporting earnings on a Form 1099 instead of a Form W-2, does not make them what they are called. The specifics of the work must be looked at. A  multi-pronged test is used under both Maryland and federal law to determine whether you are an independent contractor or an employee. These terms are explained in a complex web of Maryland and federal case law, statutes, and regulations. This article does not answer specific questions, but gives a general guideline of the factors applied in determining whether you are legally deemed to be an independent contractor or an employee. Some of these factors are: control, hours, work location, pay schedules, expense reimbursement, tools and materials, training, continuing relationship, reporting, benefits, supervision, level of flexibility, and hiring and firing.
In general, an independent contractor is likely to have more control over his or her work and more flexibility to work when and where he or she likes, with less supervision and accountability on the daily steps of the work involved. Often, an independent contractor can schedule their own hours, may work offsite, and may not have a typical boss or supervisor. An independent contractor is responsible for getting the specified work done in the manner that they choose. This, however, does not mean that they lack accountability. An independent contractor still has a specified job to do and a deadline by which to have it done. Independent contractors may be paid hourly or per project. They typically do not receive benefits such as health insurance, disability insurance, unemployment insurance, sick leave, or vacation pay.
In contrast, an employee, in general, has much less control and flexibility. Typically,an employee has a boss or supervisor, specified hours, and parameters set by an employer on how and when work should be done, to the employer's standards.  While many employees work in an office, some tele-commute or work remotely, but are still under the control of the employer. Employees may be entitled to receive benefits including health insurance, life insurance, disability insurance, unemployment insurance, pension or profit sharing, and sick and vacation leave.
So why does it matter whether you are an employee or independent contractor? First, employees are protected by a variety of wage and anti-discrimination laws that do not necessarily apply to independent contractors. Another ramification of the classification as an independent contractor or employee is that an employer is required to withhold certain federal and state taxes, such as Social Security or "FICA" taxes, worker's compensation and unemployment taxes, and other payroll taxes, from an employee's paycheck. An independent contractor, however, does not have these taxes withheld and instead must file and pay quarterly tax returns and pay estimated tax with Maryland and the Internal Revenue Service. If an employer improperly classifies a worker as an independent contractor when the person is actually an employee, the employer can be liable for back withholding taxes and even fines and penalties.
An overall summary of these issues can be found on the Maryland Department of Labor, Licensing and Regulation website at:
and at the Maryland Workers' Compensation Commission website at:
                For federal tax status, the IRS has published helpful information on the factors taken into consideration by the federal government in evaluating whether one is deemed to be an independent contractor or employee:

                                                               The Uber Case     
           In addition to many of the challenges faced by Uber worldwide, a recent hot issue has arisen in the US as to whether Uber drivers are employees or independent contractors. State courts have come to different conclusions. Maryland has not considered this issue in the Uber context, but it stands to reason that this issue is one with nationwide appeal. 
           Recently, a California Labor Commissioner decided that Uber's classification of its taxi drivers as independent contractors is wrong. In 2014 an Uber driver in California named Barbara Ann Berwick filed a wage complaint in California, seeking reimbursement for business expenses -- gas and bridge tolls. Some other states considering this same issue found that people working for Uber were, in fact, independent contractors. In the California case, Uber refused to reimburse these expenses arguing that Berwick was an independent contractor, not an employee entitled to such reimbursement. 
           The California Labor Commissioner awarded Berwick these expenses, finding that Ms. Berwick was an employee under a detailed "economic realities" test under California law. The Commissioner noted that Uber provided iPhones to its drivers, monitored and required certain ratings for all drivers, and had sole discretion to set and negotiate the prices customers would pay. The Commissioner also found that Berwick's job did not require a special skill. In addition, in weighing these factors, the Commissioner found that Uber had a large degree of control over its drivers, thus making them employees, with the full protections to which employees are entitled. 
          While Maryland is not bound by a California decision, it can be persuasive. The Uber issue is a prime example of the varied factors and interpretations used in determining whether one is an independent contractor or employee.

What Should a Maryland Employer or Employee Do?
When accepting a position or hiring, it is critical to keep in mind that whether you call someone an independent contractor or an employee has significant ramifications. Simply calling a person an independent contractor will not legally make it so. Misclassifications can cause independent contractors to miss out on key employment benefits and protections and can result in penalties for an employer, including payment of back taxes, fines, and other penalties.
For people working in the construction, home improvement, and landscaping areas, Maryland law provides some protection against misclassification by employers. The Maryland Workplace Fraud Act of 2009, which was amended in 2012, sets requirements for the classification of a person as an independent contractor or an employee. This was enacted because too many people in these jobs were automatically told they were independent contractors, when they might have legally been employees entitled to employment law protections and benefits.
Because the classification of a worker as an independent contractor or employee requires a careful analysis of many factors, it is wise to obtain legal counsel and speak to an accountant when you are unclear on this important issue.

November 9, 2015

WHY DO I NEED AN ADVANCE DIRECTIVE?

WHY DO I NEED AN ADVANCE DIRECTIVE?

            What is an "advance directive" and why do I need one? An advance directive includes two major components -- an appointment of health care agent, in which you direct a person to make decisions for you if you cannot; and what is sometimes called a "living will," a legal document that specifies your health care wishes when you are no longer able to do so. The key is to prepare this in advance, before you have health issues, and while you are still competent to make these decisions. An advance directive covers all health care issues, physical and mental. It could cover simple things like routine health care decisions that you can no longer make, or more complicated issues including whether you wish to have life support, cardio-vascular resuscitation, tube feeding, pain medications, or surgery.

           In order to make a valid advance directive, it must be signed in the presence of two witnesses, while you are mentally competent and can understand what you are directing. The person that you are appointing as your "health care agent" to make such decisions if you become incapacitated, cannot be a witness. In addition, at least one of the witnesses must be someone who would not financially benefit by your death or handle your estate.  It does not have to be notarized. You should discuss your wishes in detail with this person and be comfortable that they both understand and agree to carry out your wishes if needed. Often a spouse or parent fills this role but there is no requirement on who can serve as a health care agent. This is a personal decision that should not be made lightly.

            You do not have to hire an attorney to draft an advance directive, but many attorneys, including the attorneys at Taylor Legal, routinely include these documents as part of an overall estate planning package. The Office of the Maryland Attorney General has an approved advance directive form on its website at https://www.oag.state.md.us/healthpol/adirective.pdf.  However, you are not required to use this form.

            What do you do once you have an advance directive? Be sure to keep a copy
with your permanent documents and give a copy to your health care agent and doctor. You can
also obtain a wallet card showing that you have an advance directive.

            Suppose you do become incapacitated and cannot make an informed medical decision,
what happens if you have an advance directive? Before an advance directive is used a doctor must certify in writing that you are not capable of making such a decision. Once these steps are completed, your advance directive should be honored.

            While Maryland law does not require that anyone have an advance directive, it can alleviate a lot of stress and uncertainty.  Thus, discussion and planning ahead with an advance directive, is advisable.

            You need not worry about being locked into your advance directive. As long as
you still have legal capacity to understand what you are doing, you can always change or revoke
it. This gives people added assurances that any changing wishes or needs can be carried out.  


November 2, 2015

Why Do I Need a Will and What Will Happen if I Die Without One?

                                   WHAT HAPPENS IF I DIE WITHOUT A WILL?

            It is very difficult, emotionally, to think about needing a will, because it makes us think about death. Many people occasionally think about this and plan to look into it but don't go any further. The reason why is obvious -- it's not a fun thought and easy to say "I'll get to this later, when I'm less busy." But for many, "later" never comes. The result can have far reaching negative consequences. So, while difficult, thinking about a will is very important and could be the best gift you leave to your heirs or descendants.

            In order to understand this whole process, a little background information is helpful. 
First, what is a "will?" A will is a written legal document directing a person's wishes regarding their property and other financial affairs, or nominating a guardian for minor children, after death. In order to make a valid will in Maryland, a person must be at least 18 years old and be competent. A will must be in writing and signed by two or more credible witnesses. A will can do many helpful things including:

            1. Appointing a "Personal Representative," the person you select to administer the closing
of  your estate, pay your bills, and carry out your wishes.
            2. Appointing a "Guardian,"  who will have legal custody of your minor child or child
with a disability.
            3. Dispose of your personal and real property as you direct.
            4. Make charitable bequests.
            5. Set up a trust or special needs trust (for persons with a disability).
            5. Safeguard your finances through proper tax planning.
            6. Avoid family disputes by clearly setting forth your intentions.
            7. Explain, if you chose to, why you are doing certain things in your will.

In failing to make a will, you lose the opportunity to control all of the above important
matters after your death.
            
          If you already have a will, but need to make a minor change, a change after a will is made to part of the will is called a "codicil" (like an amendment). A properly drawn codicil will keep a will intact with a change only to the part specified in the codicil. This enables a person to make a change without the time and expense of drawing up a whole new will.  If you have major changes to an existing will, it is best to have an entirely new will prepared. Most wills should have a provision that any prior will is "revoked" by a more recent will. 

          If you do not have a will, or if no valid will can be located, each state, including Maryland, by statute, sets forth what happens if you die without a will. Thus, you are leaving important decisions up to the State, rather than taking control of your own affairs. 

         First, because an "estate" handled by someone, State law will determine who should serve as the Personal Representative of your estate. The Personal Representative is the person who must identify the decedent's assets and file required forms and tax returns, pay estate taxes and other expenses, pay bills and funeral expenses, and then distribute any remaining assets pursuant to Maryland law. State law cannot determine if a certain person is ready, willing or able to handle this work and the job may to to a person not suited to the task at hand.

         Second, State law will direct how your assets are distributed under the rules of "intestate succession" (without a will). There are many possible scenarios. These include a decedent who:
            1.  is married or unmarried;
            2.  has surviving children or grandchildren;
            3.  has siblings or parents; and/or  
            4. has grandparents or more distant lineal relatives.

            The rules of intestate succession set up a complicated division of assets based on the surviving family and relationship with the decedent. An overall scheme of this is set forth by the Office of the Register of Wills (http://registers.maryland.gov/main/publications/wills.html). An example of some or the rules of intestate succession are
  • If a spouse and minor child/children survive, the spouse receives only one-half of the probate assets and the child/children receive the other one-half.
  • If there are no surviving minor children but other surviving children or parents, the spouse receives the first $15,000.00 plus one-half of the balance of the estate; the remainder passes to the decedent's children, if any, otherwise to his or her parents.
  • If a spouse but no children or parents survive, the spouse receives the entire probate estate.
  • If children but no spouse survive, the children will receive everything.
  • If no relatives (brothers, sisters, nieces, nephews, cousins, etc.) survive, the assets will be distributed to the Board of Education in the jurisdiction where the estate was administered.

            The rules that apply to intestate succession are complicated and the above is a simplified
version. The actual statutes must be consulted in estate planning and checked regularly for any
changes or new requirements. This article does not attempt to cover every scenario or guarantee
what will happen if you die without a will. In addition to the Maryland Office of the Register of
Wills website, another helpful website for general information is Maryland Orphans Court,

            Because there are complicated personal, financial and legal ramifications involved, it is
advisable to hire an attorney at the outset of estate planning and to review your will regularly for
legal sufficiency and changing needs and circumstances of your surviving loved ones.

            Most people find that making a will and doing estate planning relieves a lot of underlying
stress and is something they wish they would have done sooner.