Terminology Issues About Consultants

Some months ago, a colleague ("Willie") posted that he was looking for a consultant to work on a project. The work would be performed from the consultant's home office. That sounded fine. But the more he talked about what he wanted to do, the more problematic things became. Many attempted to call his attention to the nagging issues but he would not hear any of the objections. Let's look at some of the troublesome matters that started surfacing so that your search for an independent consultant doesn't travel down the same path.

There was the implied statement (considering this was a consulting position) that the person would not be an employee. We hit critical mass when Willie said, "Am I being over the top by giving them 60 seconds to snap a picture of their office and send it to me?"

That's a great way to test whether the person is tech savvy enough to take a photo and then send that photo to someone within 60 seconds. You'd think it's one way to not get some stock, royalty-free photo of a virtual office that's been scraped from the Web.

Some attempted to point out that what Willie received may not be the actual home office of the consultant. It may be the conference room of a vanity office. Or it may be a booth at Starbucks. And then there's that royalty-free stock photo from the Web that the person is holding out as a representation of their home office. Some hinted that the request was a bit invasive.

What Willie started telling the rest of those who joined the conversation was what he was actually seeking. Some of it had tax ramifications. For example, "I just want them to confirm they have the capacity to work remotely. In my world, that would be someone who is organized and with a dedicated space to work." He wanted to know that it is clean, not cluttered, organized, and free of distractions (crying babies, kids running, barking dogs). He wanted some assurance that the consultant had all the tools necessary to complete the project. After all, Willie's brand was at stake. To these issues, he said, "If this was a 2 day project - then I could care less where they do it....but this will be for the entire year and I'll need some degree of reliability."

Someone in the conversation challenged Willie about the job description specifics by feigning an intent to announce the job to their circles and contacts. They raised important issues that were not included in the search criteria.

You're looking for a software developer for some unknown application, website, program. We're not certain of what language will be used to write the program but it needs to be developed, written, tested, legitimized, and delivered within a year. The work will be done remotely. The work CANNOT be done from anywhere except one's home - and a picture of that is required in order to be in the running. The pay is $50 per hour. No extras nor mileage.

Is that the job description? Does the candidate need any certifications or degrees? Do they need to show examples of other projects they've worked on and completed? Will there be any type of in-person interview or will they ever be required to do any travel - even to the home office? If so, how often and will that be covered?

The challenge was rebuffed as going in the wrong direction of interpreting the search. Friends of Willie with strong, confident voices, joined the rebuff. I teased Willie with speculation about other things besides the uploaded photo of their home office space within 60 seconds. And I conjectured that he would begin to add to the requirements of this requisition by demanding proof that it's a computer that belongs to the candidate. And then it will be the style of computer; then the model; then the peripherals it uses. Anything to narrow the player field. Willie's a good-natured guy (although he sometimes tries to sound gruff). He agreed that he would be adding knock-out requirements, such as those tossed out, in order to narrow the field to the

Employee cf. Contractor Conditions

Willie never said whether he would be paying for the tools and equipment that the consultant would be using for the project. Nor did he say whether he controlled when the work was to be done. The more he talked, the more it sounded like Willie was looking for an employee, not an independent consultant or independent contractor. If he actually wanted a consultant, he was heading for a cliff. There are certain conditions that define a consultant as distinguished from an employee.

Let's look at the definition of an employee as defined by Vanderbilt University. "An employee is an individual who performs services that are subject to the will and control of an employer-both what must be done and how it must be done. The employer can allow the employee considerable discretion and freedom of action, so long as the employer has the legal right to control both the method and the result of the services." Now taking that definition into consideration and comparing it to the screening requirements of Willie, it sounds like he's actually looking for an employee who has a rather confusing and vaguely deceptive title of "consultant."

Vanderbilt continues its discussion of employee vs. consultant by then explaining what an independent contractor is. "An independent contractor is an individual over whom the employer has the right to control or direct only the result of the work and not the means and methods of accomplishing the result." Given the various things Willie said about what he wants from his "consultant," it still sounds like he's seeking an employee.

It may be useful to know that the Internal Revenue Service has provided 20 questions to ask in order to parse out how the person should be viewed. (See IRS Revenue Ruling 87-41) If the situation is still cloudy after going through those criteria, it's recommended that the relationship be viewed as one of employer-employee and not that of retaining the services of an independent consultant.

Chances are, you're scratching your head and wondering about how to treat other types of relationships. Specifically, you're wondering how to manage situations in which you're trying to define the difference among Employee, Volunteer, Intern, or Independent Contractor. It's easy to find all of those answers in one place by visiting the definitions provided by International Catholic University's reference page.

Loose Use of Terminology

I still have the impression my colleague, Willie, was talking about hiring an employee and not an independent consultant. He contemplated exerting a lot of control over how the work was accomplished. Although not addressed, it appears Willie was very focused on the tax classification of the worker. Although he said he was recruiting for a consultant, it appears that was a misnomer. He took the time to clarify that what he wanted the photo to accomplish was prove that the candidate has a dedicated, organized work space at home. Given how he plans to narrow the field of those to be considered, I have the impression Willie's small requirement is going to get him into some big trouble down the road.

During a conference session this morning, I learned the IRS now has a hybrid of the 20-questions test which is referred to as the "economic realities test". From the consultant's desk, it appears the requirement to show proof of a dedicated work space is the first step of exerting control over the consultant. It appears some clarifying questions and answers need to happen. Then again, maybe Willie didn't tell us that he plans to pay for several benefits and perform withholding on behalf of his "consultant."

Resources:

• Guidelines for Determining Employment Relationships, R.C. Chip Goldsberry, Vanderbilt University Office of Contract and Grant Accounting (February 14, 2008)
  
• Definitions: Employee, Volunteer, Intern, or Independent Contractor, Helene Robertson, International Student and Scholar Services, The Catholic University of America (December 1, 2008)
  
• Who Is an Employee? Determining Independent Contractor Status, Susan N. Houseman, Future of work (August 1999)
  
• Fact Sheet #13: Employment Relationship Under the Fair Labor Standards Act (FLSA), Wage and Hour Division of the Department of Labor (July 2009)
  
• What is an employee?, Charles J. Muhl, Bureau of Labor Statistics (January 2002)
  
• Economic-Realities Test Law & Legal Definition, USLegal.com
  
• Independent Contractors under the FLSA, Lawyers.com
  

Handling the Abuser

Somewhere in the United States, a person sits within the confines of their home. They are alone for the moment and feel utterly isolated from all friends, family, and co-workers. Their funds are limited, controlled by someone else. They have to ask permission for the most inconsequential of things. They are depressed, mostly because their life has come to such an empty point. All dreams, hopes, and desires have been dashed into the sand.

They are edgy. The least thing makes them cranky -- or at least it seems that way. They flare up at belittling things. They are threatened with reprisals for the most minor of things or badgered for information. Their body trembles with fear at the threat of reprisals for speaking in their own behalf. Physical aches and pains plague them. They are completely aware that physical or verbal attacks are the price to be paid for self assertion.

They remember instances of recreation and laughter for the sake of joy.

They're having nightmares. Night after night, the same theme invades their unconscious state to remind them of the last time they were flung across the room, pummeled for telling an anecdote about how something was vandalized, or chastised for the least of innocent things. Being called stupid, faulted for things that are actually correct, prevented from attending to things in a timely fashion are part and parcel of their evolving psyche. The person becomes part of the 32 million American population identified as battered and abused.

They're in full stage battered person syndrome or post-traumatic stress disorder.

How do you explain to someone that they are an abuser? It's a tricky situation. When you walk away from them, you'll have to shake your head in order to cancel the crazy-talk, circular reasoning, nonsense they've foisted upon you to bamboozle you with their logic and convince you that they're right. But they're not. They're trying to control you and the situation with their nonsense. So adept at this art are they that as you listen to them, they weave a complex tapestry that sounds valid and believable. If they have a position of authority, the legitimacy of their argument is falsely bolstered by the fact of their job title. Their flimsy, flawed reasoning is not questioned but taken as gospel.

How do you tell someone they're being abusive when they're telling you that you need a lot of help with reasoning? They will go out of their way to be a "friend" in order to explain the most elementary of concepts -- concepts that you're attempting to explain to them. These are insults and put-downs. They are belittling. These are concepts that they are simply not grasping and it appears they never will. Their reasoning is too concrete.

But their belittling words are definitely starting to affect your self esteem. Do not let this person make you start questioning your value nor your intelligence. You are fine. If anything, allow your introspection to go so far as to confirm the conclusions before their assault on you; make certain you respond with a reinforced hit on their failed logic.

How do you explain to the abuser that their ignoring you is additional evidence that they’re working at diminishing you and your self worth? Assert yourself. Call their attention to the avoidance tactic. Also, don't allow yourself to be ignored. It's all right to ignore the bully -- to simply not hear them when they speak -- once they've proven what they are. If they're standing over you while talking, it's fine to rise from your chair and bump into them. But then, be polite. Tell them, "Oh, excuse me [insert name]. I didn't realize you were there." But to be certain, you are not required to sit through their berating stream of words. Simply walk away. Don't become a part of the spew. If you must, tell them you just don't have time right now. What they're saying will have to wait until another time. Then just walk away.

How do you help the abuser realize that their tactics to disrupt and destroy something you're about to do, a presentation you're preparing to make, with threats of self harm or some other alarming proclamation, are now recognized for what they are and will be ignored? Let them know it's inappropriate to manipulate others in such an immature manner; it won't be tolerated.

How do you handle the bully and the abuser? Don't lower yourself to their level; don't use their tactics as a counter. They'll revel in the fact that you've made yourself as small as they are and taunt you into doing something even more degrading. Step away from them. Walk away from their acts. Don’t hear their words.

If you're at work, make a note about what happened -- date, time, and place. Do it without adding value terms. Just state the facts and save it. A time will come when you need to refer to it or show it to someone. Just save it as a reminder. It's a reminder not only of what occurred but also that you're soon going to leave that job site for something better.

How do you handle the abuser and bully? Whether male or female, the behavior will affect you. Try as you might, you cannot handle the abuser through normal reasoning because they are not highly likely to understand. You remove yourself from their company and let them fester in their own bile.

Viva
Yvonne LaRose, CAC

Gardening and Growing a Business

I'm trying to grow a few things right now. Sometimes there are growth spurts and sometimes there is drop off. I'm not happy with the results I'm getting. But as I contemplate the many efforts and their results, I remember the many times I started a garden. Then I remember the lessons of my Zen days and realize everything in this Life is akin to Nature and if we think in terms of how Nature deals with circumstances, we're certain to come up with natural solutions and success.

In the case of the garden, whether seeds or seedlings, there was the planting period after preparing the soil. After the planting was watering in order to help the new babies take to their new environment. Proper sunlight was needed as well as the correct temperature. And the most important element of all was the proper amount of attention.

Too much water would drown my babies. Likewise, too little water and they quickly turned into crispy crinkles for the dumpster. Watching them too closely amounted to wasting time. But I tried to tell myself that they were benefitting from the carbon dioxide I was breathing on them. My rational mind said that was a fallacy But leaving them unattended for too long was just about the same as forgetting to water.

During my Zen period, someone gave me three tomato plants. The donor insisted that we feed the plants as soon as they went into the ground so they would have a solid start. In order to keep peace and appease the person's ego, I acquiesced. The plants never got fed again. They got a weekly watering along with the other herbs and that was that. But the tomatoes grew to 2.5 times the size of a tennis ball. The vines looped over themselves three times. And I had tomatoes by the bushel. You might say their conditions were super optimized. They were larger than the neighbor who was a prize tomato grower. They were larger than the ones produced by the donor. It was obvious as you looked at their faces that they tried in vain to find something to say about the size of those tomatoes and their volume to cast a pall on their quality. There was no denying the quality in any regard.

On the other hand, I kept attempting to start impatiens in the edges of the rose garden. I used 4-inch pots. I used 10-inch pots. I used rooted cuttings. Healthy mounds were given to me in half-gallon pots. Nothing worked. It wasn't from lack of conditions. The gardener would hoe the rose garden even when I asked him not to do so and he would then chop up the impatien starts. I would show him where the starts were located and ask him to hoe around them. It did no good. I put notes on the plants and pinned them to the leaves with straight pins. It did no good. Sometimes you have people who are receiving instructions from two sources and one overrides the other. Nevertheless, the impatiens received too much attention with conflicting purposes.

As a consultant, there will be projects that seem to jettison themselves into outrageous success with the least amount of effort. Just some occasional attention is fine; the initial elements were properly prepared to allow their acceptance and growth. Those will be the cash cows. Be thankful for them.

There will be other projects that are like the impatiens. No matter what you do to protect and nurture them, they will be destroyed. Then it's time to examine which parties are involved with the project both internally and externally. Get rid of the external interference as quickly as possible. Be polite; be firm; stop the destruction. As for the internal party(ies), tell them you've decided to put the project exclusively into the hands of one person and no one else will have access. You may want to embellish a bit by letting them know they'll be considered for other projects in the future. However, your main focus is regaining control of the environment and keeping your product safe from destructive designs.

As for that one person who will be in control of the project, you're now wondering who that should be. Who do you trust most, more than anyone else. Yes, that's the person who'll be in control of the project.

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