independant contractor vs. employee
 

Had this happen to a co-worker and fellow official today. He got a call this morning to sub for another official for a boys’ basketball game at a middle school that is in the same school district that we work. He has worked there many times with no problems, he was always paid by check at the game.

The school secretary emails him and tells him that his check for the game would be added to his school paycheck. He is not happy about this and sends an email back saying he is an independent contractor for the game and should be paid by a separate check. The secretary sends an email back saying since he was an employee, the new district policy is that he has to be paid through the payroll department.

As the day went on we talked about what would happen if he got hurt during the game. Would the district be liable for workers’ comp. because he is acting as a district employee for the game?

I just got a call from him, as he was working the game he torn his Achilles tendon. Now he is wondering what to do. Was he acting as an employee for the game or was he an independent contractor just getting the money through his regular paycheck?

go to your district HR...are you "him"? by chance

No, I'm not him. I don't even work basketball.

Sounds like workmans' Comp to me
 

I am not a tax accountant, but the overwhelming number of officials are considered by the IRS to being independent contractors, and the case law is out there to see it.

If the school district is adding it to his pay as an employee, they are wrong, and they are taking all the risk in paying for liability if he is injured. They have made him an employee for the game, like he was being a chaperon at the prom, so they pay the injury freight. Bad call by the school district.

Np offense intended but this isn't the Leagl Aid. Your friend has to work through this with the school and maybe through the legal system.

Genera;;y speaking:

If his health insurance through the school is like most employer-provided insurance, it will cover his health costs no matter what.

Any workman's comp issues have to be handled via the state comp folks.

My understanding is that if you are an employee of a school district you can't also be an independent contractor for that same entity (even if the "independent contractor" task is separate from and not related to your primary employment job).

The school is correct to treat him as an employee, but also now bears the burden of an on-the-job injury.

I would be shopping for a lawyer right about now - you have a 'paper trail' on this, and I would say have pretty good grounds for not only compensation, but possible legal action.

In a semi related matter, I work volleyball in addition to softball, and I recently received a letter from a school district in an area we cover, but that I do not work at, stating that from here on in, we might possibly be subject to verification,under the various immigration statutes, of our citizenship for working purposes. (i.e. the filling out of an I-9 Form!) I have not questioned this with any of our group's people, but I am pretty sure that should NOT apply to us as 'independent contractors', either. Here in New York, we are assigned by a school co-op known as BOCES, and we are told again and again, that it is BOCES that controls our eligibility to be assigned and work games, NOT the districts.

Sue the living crap out of the school. Serves them right!

[QUOTE]The aforementioned makes no sense. Officials just like CPA's should be INDEPENDENT. if you are an employee of said school then it stands to reason you CANNOT work games for that school.

In our association if you are affiliated in any way with a given school you will not be assigned to officiate any games involving that school. By affiliation I mean you have relatives that work for the school or you work in another capacity at that school. A prime example is a school teacher. That school teacher who is also an official will not be assigned any games where he/she teaches.

In a nutshell I would not talk to the school secretary but directly to the AD. Also, IMO, the AD would want to know what kind of info is coming "from his /her shop" that could land him/her in "hot water"

Pete Booth

Sue them for what? Nobody has refeused to pay for anything so far.

This could be true. I have a friend (Bob, you've met him) who teaches and we work a few subvarsity football games there every year and they do the same to him. And my friend has mentioned to the AD that it would be unfortunate if he got hurt and had to miss work (his teaching job) cause he would be filing a workman's comp claim. The AD thinks he's kidding -- he's not.

Workman's comp would cover if he had to miss his job with the district. Missing his other officiating assignments wouldn't be covered, so unless he has to miss his day job, WC and the state won't be involved.

[QUOTE=PeteBooth;640603]
Why do you assume that all areas run like yours? We get assignments straight from the schools and the districts *do not care* for subvarsity assignments -- they are happy to hire teachers, parents of players, etc. Nobody puts the JV standings or even the boxscores in the papers. Nobody cares who the umpires or officials are.

I worked a varsity girls basketball game last week and one of the officials in the JV game had a daughter who played most of the JV game. Good official, normally works varsity, but this gave him a chance to work and also see his daughter play. Nobody really cares.

For forcing him against his will to be considered an employee for the purposes of umpiring a game, when he should have been considered an independent contractor. I know umpires here who work for certain schools and districts, and they are most certainly still independent contractors when they umpire.

Agree. Neither school nor employee has a choice in the matter.

Using that logic you could sue your association for making you wear a uniform color you didn't like.

There has to be harm. What harm has been done? Did he lose pay. Was he refused medical treatment? No harm, no foul.

Jenkins is on the money on this one.

Umpiring as an IC is is a slippery slope that has yet to be set in federal law with eight states having IC/Officiating laws, and six states having IC/Officiating "rulings":
http://www.naso.org/rprt/SpecReptIndCont.pdf
The NASO article also agrees with Jenkins and I, that someone umpiring for their employer means employee when umpiring.

A person working for a school district would be an employee/official if officiating at any school within the district.

There is no harm for the employer if they classify someone as "an employee for one item, an employee for all", and a huge risk if they try to play the employee sometimes, IC other times "game".

The following article discusses a school setting from another perspective.
Higher Markets’ Purchasing Pulse newsletter in September, 2000
http://www.rainassoc.com/employee.pdf

"Of over thirty cases in which the US Tax Court, US District Courts, the US Courts of Appeals and the US Supreme Court have issued opinions based upon Revenue Rule 87-41, there is not a single case where a taxpayer has successfully argued that a person can be an employee and a contractor concurrently for the same employer."

"And as if to add insult to injury, in some instances 26 USC 6672 gives the IRS authority to hold "responsible parties" liable for a penalty equal to 100% of the employment taxes not properly collected and paid for employees. A "responsible party" can include officers, managers and any other person who exercises a controlling decision in the process of whether or not to collect payroll taxes — and that means you and me folks. There’s no question that there is some degree of personal liability as a consequence of improperly classifying employees as independent contractors.
So here’s the denouement — if your institution is issuing an IRS Form 1099-MISC and a W-2 to the same name, you just might be announcing that you’re underpaying the tax man and you probably should prepare the welcome mat for the IRS auditors."

I used to work for a school district at the high school building and did freshman and sophomore games for them, as well as a few games at the middle school. I did not do varsity games at the high school. The pay for those games was always put on my regular paycheck. I always felt that if I was ever injured doing one of those games, it would be considered the same as getting injured while doing my regular job for the district since I was not being paid as an independent contractor.

bingo!

Employee for payroll withholding purposes and employee for WC are cheese and chalk. WC is a state issue, for one; IC/employee an IRS one. They are not necessarily mutually inclusive.

IC status relieves the customer of mandatory payroll tax withholding obligations--they don't have to crate a new subsidiary account for the IC. If you're already an employee, that's a non-issue and one that school districts don't want to argue: "Why didn't you withhold based on ALL his compensation?" Hence, your friend's predicament.

Officiating is (probably) not part of the teacher's official duties; he can decline any assignment working for his employer's teams without recourse. He can say, "I'm not working our school teams' games", but (probably) can't say, "I'm not teaching third-period English."

The variance in state WC laws precludes a definitive answer here. In my state, he'd have a weak case for a WC claim based on an injury sustained while officiating. He wasn't performing his "official" duties (pun intended), and while he is being compensated by the school, he isn't "at work."

It may be different in your state. There is no one dispositive rule that does or does not make one an IC, and simply having taxes deducted from your check doesn't automatically make one an employee.