Technology Attorneys

Key Points of an Independent Contract Agreement

Independent contractor agreements have always been a part of the IT tapestry.  Still, over the years, Department of Labor has been scrutinizing these relationships more and more.  Being vigilant in these factors as well as other legal considerations, means you can still leverage this relationship to get on demand specialized expertise and skills.

Often, when companies engage the services of independent contractors, they are quick to review the work they need done, come to an understanding, and get started as soon as possible, resulting in an oral agreement. Given the quick turnaround, they want to ‘keep it simple’.  But, it is so important to create a written contract, formally known as an independent contractor’s agreement. Here are the major reasons your tech company needs this contract.  Like any relationship, it will get tested when things come to an end.

Prevent Scope Creep by Defining Project Details 

When engaging an independent contractor, especially for the first time, ensure that your written contract contains a well-detailed discussion of the work scope. Be sure to include a description of the work to be done, specific deliverables, key dates or deadlines, and what an acceptable final product should look like. Writing down these details will prevent missed deadlines and incomplete work. There should also be an agreed-upon process to follow in the event of unplanned changes that are outside the scope of work. Ensuring that there is a process for addressing scope creep can help tech companies to avoid difficult interactions, conversations, and disagreements as work progresses. 

The agreement should also comprise an agreed bill rate and payment terms such as how and when payment will be made to an independent contractor and how you get an invoice. Payment must be entwined with concrete deliverables and discuss any possible additional costs or expenses that may be accrued.  

Ensure Legal Protection for Your Company 

Perhaps the most important function of a written consulting agreement is that it provides legal protection for your organization and the independent contractor involved. No one wants to incur the financial burden of a lawsuit, so it is in your best interest to include legal protections in the contract. Discuss insurance requirements, and ensure that the contractor understands what they need to provide and who (if anyone) must be listed as an additional insured. 

You also want to put into writing guidelines around ownership of intellectual property and confidential information such as financial data, business plans, and trade secrets, if applicable to your business.

Develop Work Classification Status

One of the most dreaded risks of engaging independent contractors is misclassification. Thankfully, a written agreement is a good step for establishing an independent contractor’s status. To avoid misclassification, let your contract clearly state that you and the independent contractor agreed to an independent contractor relationship. Ideally, it shouldn’t be a personal contract but one with their company that is incorporated with an EIN.  It should also include a statement from the independent contractor acknowledging that they are not entitled to any benefits provided to your employees and that they are responsible for paying their own taxes. It might also prove helpful to secure files that can be used as proof of self-employment, such as a business or professional license, proof of insurance, or business cards.  If in doubt, it is always best to check your state’s department of labor requirements and your attorney.

Conclusion 

Independent contractors are invaluable because they allow organizations to ramp up their skill pool without the overhead. Thereby helping the company save time and resources. However, the relationship between clients and contractors can only be successful when a well-thought-out and a well-detailed written contract is put in place. 

Your Workforce Agreements

Scale Up Your Workforce with the Right Contracts

Work From Home Policies

In the past, work from home was rare and unpopular because many employers believed their workforce could be easily distracted at home. However, the pandemic has fast forwarded this practice to almost become the norm in some sectors. Employers have begun to see the many benefits of the work from home model, which includes increased productivity and efficiency, protected public health (especially with the outbreak of Covid19), less need for office space, and so on.

 

Also, the enabling technologies for implementing work from home are increasingly more available and easily accessible. Employer’s now more than ever must create work from home policies to ensure productivity and prevent lapses in workflows across the various levels of operations.  It is also imperative to discuss the various ways the employee must comply with policy to ensure that company data is secure and uncompromised. 

 

Determine which roles can be done remotely

 

It is crucial to know from the onset which roles can shift seamlessly from the office to the home because some functions within the organization demand physical presence. For instance, a forklift operator cannot function from home, whereas a software developer can easily perform their duties from anywhere via a laptop and internet connection. Also, investigate those roles that are office-bound, or warehouse-bound and find out what functions can be performed remotely by those in these roles. 

 

Decide what rules and company policies should be followed

 

It is critical for employers to clarify which rules, regulations, and policies of the company still apply to work from home and what is new for those that work from home. Because these employees will want to know exactly what is expected of them in this regard. Usually, all standard company policies and resources such as code of ethics, attendance policy, professional code of conduct, sick leave, and the confidential agreement still apply. 

 

Establishing metrics to measure the success of your remote model policy

 

Metrics and goals should always be a part of day to day work no matter where your employee has their ‘office’.  So, I won’t get into that here because I also feel that there is a level of maturity and responsibility that goes with work from home.  It goes towards the concept of Results Oriented Work Environment; ROWE, that was introduced a few years ago.

 

Items to Consider in Updating Policies:

 

Technology:  Employees need to make sure they have the right technology to complete their tasks.  If there is a work from home budget allowance, specify what kind of technology they should have.  Often, cheap comes with poor security so you should allow for software, subscriptions and hardware in that budget that have security as a priority instead of free software that leaves your data vulnerable.  Also, make sure that they have their own secure, Wi-Fi connection, using a free or mobile hotspot might not give the security or speed your employee needs.  This is particularly important for REMOTE workers since they are mobile, their internet connection may change from day to day. 

 

Access to work systems.  We have come along way since Citrix Remote Access and I still cringe to think about how S L O W Citrix was.  But happily, with the advent of Dropbox, GDrive and Office 365.  Enterprise solutions allow you to control how your employees access company data.  Again, this is where free can get you in trouble.  An enterprise solution will also allow you to REMOTE WIPE a device if (or should I say when) your employee misplaces a laptop or phone.  Or, if you need to terminate employment.

 

Tech support.  Pro-actively offer the assistance of your internal tech support to ensure that the technology and hardware that your employee is using is fast, effective and secure.  This is not the time for self-help measures.

 

Client confidentiality.  While security and connectivity are important, consider that now, your employee may not have a designated workspace at home.  Important documents maybe be available for anyone to read if their workspace is, let us say, the kitchen table.  BE CLEAR that all documents should be securely held where third parties cannot view or access.  Or, that no printing is allowed or encouraged.  After all, haven’t we come so far with paperless offices?

 

 Communication.  Your Policies should also include HOW you want your employees to communicate with clients and internally.  Data retention policies need to be adhered to regardless of medium.  Encourage the use of internal tools like Microsoft Teams, or Google Meet to control the data retention and security.  The use of texts is now a normal day to day work occurrence but your employee’s should be aware that even that should be subject to data policies and act accordingly.  A best practice should be communicated to your employees.  

 

It is important to be clear about how and where you want your employees to work remotely or from home. 

 

The goal here is to discuss security and policy that will help your company stay compliant with IT security and other regulations such as privacy.  And moreso, how education is so important that your employee understand the why behind these policies.

 

Conclusion

 

 

A work from home policy is essentially an agreement that outlines everything needed to allow employees to work from home without causing any disruption to company goals and procedures, and these tips will help employers do just that.  While the above are general guidelines, every company has specific needs.  Talk to us today to help you update your policy!

Work From Home vs Remote Work

Remote Work and Work From Home are not the same...

Work from home is remote work BUT remote work is NOT work from home.  Understanding the difference and implementing compliance and policy will make all the difference in your business.  The current pandemic has forced the hands of many businesses to adopt these, what have been in the past, unorthodox work methods.

 

Many people understand remote work as working from home, and they are not wrong per se. However, remote work has a broader meaning. It is work that doesn’t take place in a traditional office—in other words; a remote job means you won’t be driving to the same physical business or office building Monday through Friday and staying there for the duration of an eight-hour shift. Keep in mind that a non-traditional workplace can be anywhere with high-speed internet access like any co-working space or even a coffee shop. While work from home is a subgroup of remote working environments, there are huge differences between the two options, as you will get to understand in this article.

 

Work from Home 

 

Working from home means that you have a full-time job and flexibilities that allow you to work from home when needed. For some employees, it means being able to balance the demands of others who depend on your help with the demands of paid work. This practice has become more accepted as organizations continue to evolve and understand the ever-changing needs of their employees, especially when it comes to schedules. For instance, an employee may have a medical appointment on a particular day, and it’s more productive for her to work from home if the commute from her home to the doctors is just a short distance away. 

 

However, if you choose to work from home, you must put systems in place to be successful—things like a dedicated home office space, a defined work schedule, and clear boundaries for friends and family. No matter how flexible your schedule is, you need to plan ahead and know when you’re going to work. After these arrangements are established, your home can become an ideal workplace, even while juggling domestic tasks.

 

Remote Work

 

Remote working, on the other hand, is synonymous with a digital nomad, a person who can work from any place in the world, with his/her digital devices and access to a fast internet connection. As a remote worker, you can connect with your employer or teams digitally while seated at Café or sunbathing in a resort halfway across the world. Also, a remote worker may never have to meet their employers physically, due to their variable location and most likely won’t be required to attend company events or training in person. However, a remote worker must always be reachable and available for online meetings in case vital information is needed to be passed or for necessary discussions. 

 

Of course, remote working also means that you don’t have a set office time, and your schedule and hours remain yours to develop, and you can move from remote workplace to remote workplace as you see fit. Organizations often employ the services of remote workers, who already have good working experience, for smaller projects since little to no training is required. 

 

While work-from-home opportunities entail commuting from your bedroom to your office—pants optional and pajamas welcome—working remotely outside the home has more ‘x’ factors built in.  Working from home means that your environment is static.  Same internet, same desk, same space to keep your laptop. Working remotely involves traveling from your home to wherever you choose to work and being in a public or semi-public environment.  This can pose many risks since internet connection can be compromised, human error increases exponentially to leave your technology unsecure or even lost!

 

This being said, it is extremely important that while the trend may be work from home that can blur to remote work, you, as a business, need to ensure that you have the right technology, practices, protocols and security in place to ensure that your employee’s choice of venue does NOT leave your company vulnerable.

 

H1B Transfer: Layoffs and Getting a New Employer

H1B layoffs greatly disrupt the plans of foreign nationals who work in the U.S. with an H1B visa. In the past, there was no grace period for H-1B workers to find new employment or even to sell or otherwise dispose of personal property. However, with new regulations that took effect on January 17, 2017, foreigners who found themselves in this situation were given a 60 day grace period after their employment is terminated.

How to Go About A H1B Transfer

In an even of H1B layoff, here are some steps to take:

  • Relax: Try as much as possible, not to panic. After all, you still have a valid visa, and your stay is still legal. Although you are out of a job, your stay cannot be termed “unlawful presence.” This is because the date on your I-94 document rules the question of “unlawful presence” for purposes of the three and 10-year bars. So since the date on your I-94 document has not lapsed, then you are not accruing unlawful presence.
  • Hunt for A Job: This is key. Your job search must start as soon as theH1B layoff occurs. Make job hunting a full-time job. It is important that you invest time and energy into getting a job during this period of time.
  • Stay Legal: Try as much as you can to maintain legal status. If your H1B was revoked by your former employer as at the time of your H1B layoff, then it is imperative that you file for a B-1/B-2 change in status as soon as you can. You will need financial evidence of your ability to stay in the country. You will need an itinerary that outlines your intent to leave the country at the end of the new status. In the event that your H1B status was not revoked as at the time of the H1B layoff, try to find a new employer then file a change of employer petition. However, if finding a new employer and getting a change of employer petition filed within thirty (30) days becomes impossible, then it is advisable that you apply for a change of status to B-1/B-2 visitor status.

Finding New Employment

H-1B workers are sometimes allowed to work with a new employer without waiting for their H‑1B petition to be approved. However, they must meet the following requirements:

  • Legal admission to the United States
  • Previous ownership of H-1B status and no illegal work since their last lawful admission to the country.
  • The filing of a non-frivolous H-1B petition by the new employer

Conclusion

H1B transfers can be daunting for foreign workers. Most of these challenges stem from not being able to know enough about the process. Hopefully, with the directions in this article, you should be able to navigate the situation.