If it walks like a duck, quacks like a duck, and looks like a duck, then it’s a duck even if you call it a cow. The same is true with independent contractors. If it walks like an employee, quacks like an employee, and looks like an employee, then it’s an employee even if you call it an independent contractor. So make sure your independent contractors are really independent contractors or structure the relationship in a way that fits an independent contractor.
My teenage son will pour himself a bowl of cereal and bring it up to his room to eat while he does his homework. He’ll finish his cereal and then forget to bring the bowl back down to the kitchen. His dirty dish will sit in his room until we ask him to put it in the dishwasher (I’m sure none of your teenagers do things like this). So what do we do? Do we punish him? Do we ask him to put his dish away? Do we take care of the dish for him? Do we take the time to teach him the value of courtesy? Do we ignore it? Or do we just accept him for what he is?
“A wizard is never later, nor is he early, he arrives precisely when he means to.” J.R.R. Tolkien The Lord of the Rings. You’ll hear something similar from most lawyers. A contract is never too long, nor too short, it’s precisely what it’s meant to be.
What does an employee handbook have to do with surgical anesthesia? Yes, they both put you to sleep; but that’s not what I’m getting at. Surgical anesthesia came onto the scene back in the early 1800’s—about the same time that antiseptics arrived. The one caught on quickly—doctors loved anesthesia—but the other didn’t. Why? Because surgical anesthesia solved an immediate and visible problem, while antiseptics solved an invisible problems (germs) and the effects of antiseptics were not immediate.
My first experience as a law student was the law library. I walked into it and saw one whole floor of books full of laws, cases, and regulations. I was overwhelmed. Then I found out there were four more floors of books and thought to myself, “that’s ridiculous.”
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