Australia: Injured Traveling Worker Compensated

Regardless of location and setting, employers or their representative arrange for the accommodation of a traveling member of the workforce.  While the self-arranged accommodation for travel is becoming a trend nowadays among employees because of conveniences and usage of personal mileage perks. However, employers approved such travels as these relate to business.

©2012 JNTConsulting

Recently, New South Wales, Australia was in the front of newspapers because a traveling worker (Human Relations Section of the Commonwealth Government agency) got injured during her travel time. Notwithstanding that she was injured while having sex with an acquaintance when a light fixture fell on her. 

New South Wales, Australia - source: travelpoint.com.au

In April 19 2012, the Federal Court Justice John Nicholas ruled that the woman was injured during her "course of employment". He added, "if the applicant had been injured while playing a game of cards in her motel room she would be entitled to compensation" and the fact that the woman was engaged in sexual activity rather than some other lawful recreational activity while in her hotel room does not lead to any different result. 

What this means to you?

1. When it is a business travel, the responsibility of the employer is not limited to the actual time when the job is being performed. 

2. Regardless of your country location where business transactions are being conducted. There is an extended responsibility of employer during the entire travel period of any member of the workforce. 

3. This result of a court case becomes a precedent.

4. While this case was in Australia, depending on your business location employers who may be influenced by their 'liability insurance underwriter' may now create a travel clause that will exclude injuries incurred during sexual activities while on business travel.

In the US, many employers react immediately on cases like this and employment related advisers suggest to their clients to review their travel policies.

To read the full article, please click "Worker injured during sex" 

Comments:
We like to hear about your insights. You can email your comments to: info@jntconsulting.com or write in the provided message field at the end of this article.

About JNT Consulting

JNT Consulting Global Resources offers professional consulting and resources management, provides workforce solutions that will achieve the "High Performance Organization" regardless of size and location.

JNT Consulting has its headquarters in San Jose, California and is "Your Partner for Growth & Development”, “Your Professional Coach”, and “Your Provider of Global Resources”. You can contact us by calling +1 650 241-3207 or visit our website.

Reference:

1 http://www.news.com.au

2 http://en.wikipedia.org

3. http://www.jntconsulting.com

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Misclassifying Worker as Independent Contractor - New California Law Plus Implications where Business Operates

In October 9, 2011, Governor Jerry Brown signed into law the Senate Bill 459 (Ellen Corbett) which prohibits willful misclassification of a worker as an independent contractor.  

As of January 1, 2012, this new California Law took effect with Section 226.8 has been added to the Labor Code.

The following are its provisions; 

1. Willful misclassification of an individual as an independent contractor.
2.  Charge an individual who has been willfully misclassified as an independent contractor a fee, or making any deductions from compensation, for any purpose, including for goods, materials, space rental, services, government licenses, repairs, equipment maintenance, or fines arising from the individual’s employment would have violated the law if the individual had not been misclassified.

When a violation has been determined, a person or the employer would be;
1. Subject to a civil penalty of not less than five thousand dollars ($5,000)
2. And not more than fifteen thousand dollars ($15,000) for each violation, in addition to any other penalties or fines permitted by law

When a violation has been determined that an employer or a person has engaged in any of the enumerated violations of subdivision; (a) and the person or employer has engaged in or is engaging in a pattern or practice of these violations,
1. Subject to a civil penalty of not less than ten thousand dollars ($10,000)
2. and not more than twenty-five thousand dollars ($25,000) for each violation, in addition to any other penalties or fines permitted by law.

When it is determined that the person or an employer is a licensed contractor company pursuant to the Contractors’ State License Law and has violated subdivision (a), State Agency shall transmit a certified copy of the order to the Contractors’ State License Board for disciplinary action.

An employer who is determined as a violator of the law, it will be required to do the following;
1. Must post a notice on its website that; (a) it has committed a serious violation of the law by engaging the willful misclassification of employees, (b) it has changed the business practices to comply with the law, (c) it provides any employee who believes that he or she is being misclassified as an independent contractor may contact the Labor and Workforce Development Agency. The notice shall include the mailing address, e-mail address, and telephone number of the agency. (d) the notice is being posted in pursuant to a State order.

In addition the employer also shall satisfy the following requirements in preparing the notice:
(1) An officer shall sign the notice.
(2) It shall post the notice for one year commencing with the date of the final decision and order.

An inspection to the compliance of the law may take place at any time. Violators of non-compliance to issued order will be given a citation in addition to the penalties or damages that are otherwise available at law.

When an employer does not have a website, such notice must be posted prominently in areas that are accessible to employees and the public.

Perspectives:
1. Any person or employer who will hire an independent contractor must understand the full responsibility of the function and not the same or similar to someone who is employed in the organization.
2. The Rule of Thumb, check the IRS IC Test to determine whether the position is classified correctly as an independent contractor versus a supervised or managed employee.
3. It will be worthy to understand the example provided by the IRS regarding their description of a Common Law (Employee)

Common Law Rules (source: IRS.gov)
Facts that provide evidence of the degree of control and independence fall into three categories:
a. Behavioral - does the company control or have the right to control what the worker does and how the worker does his / her job?
b. Financial - are the business aspects of the worker's job controlled by the payer? (these include things like how worker is being paid, whether expenses are reimbursed, who provides tools/supplies, etc.)
c. Type of relationship - are the written contracts or employee type benefits (1.e. pension plan, insurance, vacation pay, etc.) identifiied? Will the relationship continue and is the work performed a key aspect of the business?

4. When in doubt about the responsibilities of the role and cannot determine whether or not it falls in a correct classification, sought the guidance of an experienced human capital consultant or employment attorney

Many argue that this law is a "job creation killer". For any follower of laws, a correct classification of every worker will take place upon hire. For any non-follower of laws, an employee who may not qualify to perform the role of an independent contractor may be classified as one for purposes of convenience and cheap labor.

This law has a backbone to protect hard working individuals and be classified as independent contractor. This new law also allow anyone within the organization to report to the State Agency, that there is someone working within the premises who was misclassified.

The ICs are business people who deliver the quality of work without the help of micro-managers.

Business Operation's Location as a Consequential Evidence of Greater Interest:
When executing an independent contractual agreement, do not ignore to identify the actual location of the job being performed by the Independent Consultant / Contractor, required by the contracting business. It is equally essential to identify the actual location of the hiring party whether within the state or outside the state. The relationship between parties must demonstrate the impact of "materially greater interest" when the job is being performed. Both locations help determine the location of materially greater interest.

The most recent case that illustrated such conflict which emphasized the business operations location and its greater interest was the case of Ruiz v. Affinity Logistics Corporation.

Comments:

We like to hear about your insights and experience. You can email your comments to: info@jntconsulting.com or send through the provided message field at the end of this article.

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Discriminatory Hiring and Business Practices

Hiring is a two way street, it involves the interaction between two parties (the candidate for a job and the hiring party). Both parties will have a discussion about expectations, opportunities and limitations relative to the job functions and the candidate's competencies. Regardless of the result of the discussions, one is a winning party if not both.

In the past years, there were evidence of declining good hiring practices as discriminating practices were more evident. The following illustrate examples of practices that were reported and can be found publicly in the internet;

The US Department of Labor pursued cases of discriminatory practices such as;

The company's selection criteria were subjectively and inconsistently applied. As a result, women were less likely to be employed in entry-level production jobs, and Asian and Pacific Islander job seekers were unfairly favored over other racial groups.

The company was giving preferential treatments to Latino applicants and systematically discriminating against African-Americans and Caucasians seeking longshoreman jobs.

On Equal Pay:

The company discriminated against female sales specialists by paying them salaries that were, on average, $1,700 less than their male counterparts.

In prior year, evidence of discrimination exist to individuals whose age ranges above 40's.

The Legal Information Institute of the Cornell University Law School, has provided an overview of Employment Discrimination. It seeks to prevent discrimination based on race, sex, religion, national origin, physical disability, and age by employers. The link provides you with more information about discrimination which also exist in the United States Constitution.

“In this day and age, it is shocking that any company would allow race to be a factor in determining who gets hired,” said OFCCP Director Patricia A. Shiu.

The main question is, what triggers employers to discriminate against individuals while there are laws that prohibits such actions.

Perspectives:

As long as there are individuals who play the role of a victim, the "exploiter" will take advantage at any rate until such time the actions are caught.

As we have seen in different industries, the so called exploiters like cheap labor and greed. Sometimes the influencer to such discriminatory action is power and familiarity.

Do you think there be a time where 'total equality and respect' will exist in this world? Your guess will be as good as mine ~

Comments:

We like to hear about your experience. You can email your comments to: info@jntconsulting.com or send through the provided message field at the end of this article.

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Jobs: Technical Engineering Opportunities

New Opportunities in Technical Engineering!

JNTC Careers is seeking experienced engineers who will participate in the development and growth of dynamic clientele.

The details of position requirements can be found at JNTC Careers - Technical Engineering

Please submit resumes per instruction. All resumes will be reviewed accordingly.

Perspectives:
Another option to access immediate employment is through the assistance of JNTC Careers, a strategic recruiting sourcer or staffing researcher. JNTC Careers, have direct source of unpublished positions not available at the career websites of employers.

Check the list of Technical Engineering positions that JNTC Careers are sourcing and researching. If the position is relevant to your qualifications and background, each job seeker will submit their resume to the email address provided. Your qualification will be matched to the current positions. Someone will contact you to review your background and understand your interests and career plans.

We invite you to join Us at our social media pages:

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Interviewing Biases Disengage Effectiveness

Question and Answer:

Question: Are biases during the interview can be eliminated or reduced?

Juntee Terrenal Answered:

"Good question, however these biases cannot be reduced or eliminated until demonstrated 'ignorance of interviewers' will be removed and be replaced with the' ethical and correct interviewing practices' at the interviewing table. Ignorance can only be eliminated through education, training and learning. Should there is a qualified Trainer at the HR Training Section, this Trainer must be responsible in making sure that all parties involved during the interviewing period must be educated properly with the correct and appropriate knowledge, techniques and employment-related content focus prior and during the interview.

Many have identified main causes of interviewing biases. In addition, it is also the misrepresented concept of 'cultural fitness of the candidate'. Today, majority of organizations are riding on this band wagon of a pre-conceived behavior 'cultural fit'. With that mindset of interviewer prior to the interviewing time, one's readiness to a bias activity was at hand. Hence, many managers do not take the time to learn the techniques of fielding an applicable or not applicable question to an interviewee during the interview."

Relative Articles:

Be Relevant, Sensible and Strategic

What Are the Ten Pointers of the Job Seeker

Perspectives and Questions on Interviewers' Behavior:

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