Individualised Funding: Legal Perspective Auckland Disability Law ADL/PSA Forum: Defining our Futures 16 July 2015

Should you be concerned?  It’s okay – I employ all my support workers as contractors!  I went to my business coach and explained I didn’t know quite how to write my job descriptions, could she help me? She asked me if I was sure I could really handle IF. I stopped asking her for help.  We’re being investigated by MOH. They say I’m an agent – but what does that mean?  My Host Provider handles my payroll, so I don’t need to worry about this  I have IF but my family manages all that stuff for me. Do I need to know what they do?  I was afraid to have a personal grievance (PG) taken against me so I didn’t know what to do when my support worker told me I better sign off on false timesheets or they would leave me in the shower.  I put in a 90 day clause so I can try out workers and dismiss them with no problems.

Responsibilities of the Employer  ALL legal employment requirements  Developing job descriptions and employment agreements  Health and Safety Requirements  Reasonable Accommodations  Kiwisaver, PAYE, ACC levy  Annual and Sick Leave, Holiday Pay, Parental Leave, Breaks

Responsibilities of the Employer  Record keeping requirements  Coordinating payroll  Ensuring that caring is provided to an appropriate standard  Notifying Host Agency of problems and changes  Resolving problems with employees (including termination), following correct legal procedures  Complying with monitoring

Treating Support Workers as Contractors  Common tactic with hope of transferring responsibilities and obligations onto employee  Complex test to determine if someone is a contractor:  Does the employment agreement reflect contractor status?  Does the person do business on their own account?  How much control does the employer have?  Can you show support worker brings their own equipment? Sets their own hours?

Treating Support Workers as Contractors  ERA will likely not agree that worker is a contractor  Employer’s responsibility to get this right  Can award accrued annual leave, sick pay, payment of lost wages while employee looks for new job, and compensation  Host Agencies in most cases do not support this arrangement  Any defence charges, back pay, etc. will need to come out of YOUR budget  Insurance available through some Host Agencies can have an excess of $1000 you must pay if you make a claim

Case Example: Meldrum v. O’Brien  Support worker raised a PG: “unjustifiably dismissed”  Employer had difficulty securing a lawyer  Employment relationship documents not well recorded  Employee did not work the expected hours  Dispute around employee leaving: Abandoned position? Asked not to return?

Case Example: Meldrum v. O’Brien  Determination: Employee does not have a grievance, no costs awarded  Learnings:  Important to have all documentation formalised, keep good records  Need for affordable, skilled legal representation for IF employers  Employer is generally the responsible party for ensuring all requirements are met  Amount of time to go through mediation and ERA process is lengthy and a significant hassle  Mr O’Brien could have been held responsible for thousands of dollars

Issues & Misconceptions  Lack of clarity around employer role  Issues with template employment agreements from Host Agencies  Confusion around contracting support workers  “Personal Grievance” taken against disabled person by support worker  EMA membership benefits limited  Not able to assist people paying for the service (refer clients to ADL)  Cost of lawyers ($200/hr)

Issues & Misconceptions  Liability insurance not uniformly available and high excess  Role of Agent unclear  Business coach role is limited  People feeling if they reveal questions/concerns around employer role, IF will be taken from them  Community Law Centres generally do not take cases on behalf of employers

Recommendations  Proceed with caution  Get advice/external review of job descriptions and employment agreements  Ensure paperwork is signed, complete and on file  Keep good records of conversations, approval notifications  Consider host agency managing payroll  Better training around employer responsibilities  Need for hands-on individualised “coaching” by business coaches  Keep a realistic budget for dealing with PGs: $3-5,000.00

Questions?