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Hiring Employees

7 Factors To Determine Who Are Your Employees (And Who Aren’t)

With the rise of the gig and on-demand economies as well as remote workplaces, the question of whether an ‘independent contractor’ is in fact an employee is perhaps more significant than ever.

Kyle Torrington

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Independent Contractor Or Employee

This question has been considered in a number of countries around the world in relation to, for example, Uber drivers, where certain drivers in California have been ruled employees inspite of Uber having ‘employed’ them as independent contractors.

So what’s the significance between the two? Well, being deemed an employment relation means that the Basic Conditions of Employment Act and Labour Relations Act apply, and you would have to register for the Skills Development Levy, Unemployed Insurance Fund, Workman’s Compensation, SITE and PAYE for example, which entails continuous monetary contributions.

Related: Reality Check: You Probably Don’t Own That Work You Outsourced

Also, ending an employee’s employment is far harder than terminating an independent contractor, as the provisions of the Labour Relation Act, in so far as the procedures are concerned, such as disciplinary hearings and the like, are required to be followed in the case of dismissing an employee versus an independent contractor which normally entails issuing a simple notice of termination.

Code of Good Practice tells you who is and isn’t an employee

In South Africa, in December of 2006, the NEDLAC Code of Good Practice was released, setting out certain rules outlining when a worker will in fact be regarded as an employee.

Of particular importance in the Code is the presumption of who is an employee in terms of both the Labour Relations Act and the Basic Conditions of Employment Act.

This presumption applies to all workers if their gross earnings before any tax, pensions, medical aids and other similar payments have been deducted are below R 205 433.30 per annum.

Factors to determine who are your employees

The Code sets out seven factors to determine whether someone is in fact an employee. These factors apply regardless of the form of a contract. For example, placing a label on the relationship such as a ‘Sub-Contractor Agreement’, ‘Agency Agreement’, ‘Independent Contractor Agreement’ etc, even if recorded in the contract itself, cannot be taken as conclusive proof that that worker is an independent contractor.

In practice, if a worker can establish that one of the seven factors is present, unless the ‘employer’ can then prove otherwise, the worker is regarded as an employee.

Related: Cover All Your Bases When It Comes To Employment Agreements

project-staff-management

Let’s have a look at the seven factors a little closer:

1The manner in which the person works is subject to the control or direction of another person

If a worker is subject to the demands, orders or instructions of the ‘employer’ or employer’s personnel as to the manner in which the worker is required to work, this factor is generally presumed to be present.

In contrast, this factor is not present if a person is hired to perform a task or produce a particular product and is entitled to determine himself the way in which the task is to be performed.

If the head office of the company operating a ride sharing app instructs its drivers on exact directions to take for each trip, and how they should behave and dress, this factor would most likely be present.

2The person’s hours of work are subject to the control or direction of another person

If a worker’s daily working hours or total monthly work hours are set out in a contract, this factor may indeed be present.

For example, an Independent Contractor Agreement which requires the worker to work between 9am and 5pm every weekday would certainly be indicative of this factor being present.

3 The person forms part of that organisation

For example, at a manufacturing plant, if a worker is hired to operate the machinery which performs a core function of the manufacturing plant, this factor will most likely be present.

4The person has worked for an average of 40 hours per month over the last three months

This factor is self-explanatory and is predominantly present if a worker works for a full nine-hour per day work week per month for an ‘employer’.

5The person is economically dependent on the other person

This factor is generally present if the worker is dependent on the ‘employer’ as their sole or principal source of income.

With the exception of part-time employees, the Code says that this factor won’t generally be present if a person is genuinely self-employed or still has the capacity to contract with other people to provide services.

If the driver of a ride sharing app is entirely dependent on the owners of the app as a source of income, and the driver is not discernibly self-employed or does not have the time to build up relationships with other possible ‘employers’, then this factor will in all likelihood be present.

6The person is provided with the tools of trade or work equipment by the other person

In our ride sharing example, if the employer provides the driver with the vehicle to be used, whether the vehicle is provided free of charge or not, this factor will most likely be present.

7The worker only works for or renders services to one person

A writer working for a particular blog twice a week, another blog twice per week and a news outlet once per a week, would generally be regarded as an independent contractor and not an employee.

As you can see, the lines between an employment relationship and independent contractor arrangement are often blurred and require careful navigation.

Kyle Torrington is the co-founder of Legal Legends, a company that aims to revolutionise the legal industry by being Africa’s first eCommerce website for quality legal services aimed specifically at start-ups and entrepreneurs

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Temporary Employment Providers — Friend or Foe?

Contrary to the fact that legislation states that temporary employees work under a dual relationship between a TES provider and their client, the relationship has been questioned, confusing the situation and muddying the waters.

Workforce Staffing

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Currently, under a dual employment relationship, employees are given the protection of employment benefits under the TES provider and, after a three-month employment period, attain extra protection by being considered under the employment of both the TES provider and their client.

Yet various unions have pushed back against TES providers, citing that ‘labour brokers’ don’t have the best interests of the workers at heart. So, are TES providers truly the enemy — or could they be the solution?

What is a TES provider?

The term ‘labour broker’ is being bandied about with startling regularity. Surprising, because ‘labour brokering’ is actually a concept that no longer exists in legal terms, according to Joanette Nagel, Labour Specialist at Hunts Attorneys.

Related: Does A Strike Hit The Heart Of Your Business?

“It’s a term associated with ‘bakkie brigades’, those once comfortable picking up ‘piece workers’ and exploiting them with little to no consideration for labour laws,” Joanette explains. “Today’s TES providers are reputable organisations that, with the backing of the law and strict policies, provide a valuable service while ensuring that the rights and wages of temporary employees are in line with permanently employed staff.”

Sean Momberg, MD at Workforce Staffing Solutions, agrees: “A dual relationship where the employee is employed by both the TES and the client after three months means that the employee is actually afforded more protection. If, for example, the client falls into circumstances in which they can no longer honour the contract, such as if they go insolvent or a project is cancelled, the TES provider is still bound by contract to the employee and their rights to compensation, among others, are protected.”

The role of a TES in business

According to the Global Employment Trends for Youth 2017 study, conducted by the International Labour Organisation, the rapidly changing labour landscape has made the expectation of traditional or permanent employment less realistic than ever before.

“There is a global trend towards temporary employment that is supported by a new trend of flexibility in career choices as well as employment environments. The demand for TES providers to play a more active role in the labour market is higher than we have ever known,” affirms Sean.

Organisations will also benefit from this trend, especially as businesses can outsource all non-core related labour requirements, allowing them to focus on their core purpose and not concern themselves with the labour function, or the overheads associated with human resources. “A TES takes on the responsibility of employment, remuneration, legal disputes, strike mitigation, employee wellness, interactions with unions, and many other HR concerns that are extremely resource intensive,” says Sean.

A TES ensures economic continuation

“President Cyril Ramaphosa said in his recent YES initiative launch, that even those with further education often struggle to bridge the gap between learning and earning. TES providers help with bridging this gap, offering skills development that guarantees jobs,” notes Sean.

Related: Finding Success With Workforce Staffing In The Minimum Wage Reality

“TES providers are here to stay and offer the best of both worlds to organisations and employment seekers alike. Dual relationships continue to protect workers, underpinning and promoting their rights, while helping businesses to cover any skills and employment gaps within their organisations without having to invest in huge HR departments and legal representation to do so.”


Spotting a reputable TES provider

  1. Registered and compliant with the Labour Relations Act (LRA)
  2. Likewise with the Unemployment Insurance Fund (UIF) and relevant bargaining councils
  3. Has the necessary insurance and off-balance sheet financial protection in place
  4. Able to provide proof of regular auditing
  5. Able to show full legal compliance and holds a letter of good standing.

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Hiring Employees

Million Rand Questions Answered By Founders Of Multi-Million Rand Businesses

Don’t waste your time asking job candidates to name their greatest weaknesses (yes, everyone will say they’re a perfectionist). Instead, try these four tips from seven entrepreneurs who offer up their best strategies.

Nadine Todd

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1. Interview for growth

Building and maintaining a sustainable business is having the right infrastructure to do so, and that takes people — great people. The problem is that while you’re on your growth path, you can’t necessarily afford the best and most experienced in the market, so the trick becomes hiring people who you can see will grow with the position — you’re not hiring for now, you’re hiring for where you want to be. When we interview, we look for hungry people.

We want to know where they see themselves five years from now. — Steven Kark, Paycorp 

Related: Why You Should (Seriously) Stop Hiring People

2. Look for accountability

One of our favourite interview questions is ‘Tell me about when you missed a deadline.’ It’s an immediate red flag if they say they never have; either they’re lying or they’re not accountable. We’re looking for an answer that says they had an issue, what that issue was, that they recognised it, and how they found a solution — solution and accountability are key. We also believe technology makes the whole process easier, particularly if you are stretched for time. Spend time designing questions and then get someone else to ask them. Video each interview, watch the interviews in your own time, and then select the top candidates for face-to-face interviews. — Elvira Riccardi and Donna Silver, Afrizan

3. Dig into their current environment

We can’t compete with corporates on benefits, so we offer something even more valuable: Time and flexibility. There is a caveat though: Don’t employ someone whose benefits were better than you can offer. We interviewed someone who was a perfect candidate, except she was coming from a large corporate that offered an on-site masseuse for free, amongst other things. As much as we loved her, we knew we wouldn’t hold on to her. She was used to an office environment that we could never offer.

You need to be hiring people who are stepping up; not the other way around. We always dig into what their current office environment is like. — Renay and Russell Tandy, Ngage

Related: Hiring The Right Person Is Critical When Growing A Business

4. Make them sweat

For years we had issues around high staff turnover. We realised that the problem started in the interview process. We were hiring the wrong people who didn’t suit our culture, and they would quickly burn out, or challenge our expectations. We realised that 80% of the success of a hire is culture. Natie Kirsh used to recommend going for a drive. He said that if you sit in the passenger seat and just chat, asking any questions that come to mind, the candidate will soon reveal themselves in the simplest ways. You’ll see the person, and you can make a judgement call on whether they suit the requirements of the position and the company.

We also love the questioning method of four-year olds. Whatever the answer to a specific question is, follow it with a ‘why’.

At the beginning it’s not even about the answer. Candidates will always arrive at an interview with certain rehearsed answers. If you keep asking why, eventually they have to start giving you completely unrehearsed, unplanned answers, and that’s when you’ll get a real sense of who they are. — Ran Neu-Ner and Gil Oved, The Creative Counsel

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Hiring Employees

3 Pragmatic Tips For Start-Ups Making Those Critical Initial Hires

One survey found that the third leading cause of failure by startups studied was that they hadn’t built the right team from the beginning.

Pratik Dholakiya

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Nearly every business is guilty of making a less-than-stellar hiring decision at one point or another. A whopping 95 percent of companies surveyed by Brandon Hall Group for its Talent Acquisition study have admitted to this mistake.

While a bad hire can potentially slow down growth at any company, it can actually have a fatal effect on a startup. According to a report by CB Insights, the third leading cause of failure by startups studied was that they hadn’t built the right team from the beginning.

Creating a strong team means that each new hire (or promotion) must be made strategically and with great care, as the margin for error can oftentimes be quite small. Here are three tips to help you build a pool of talent that brings your start-up to the next level.

Define your company culture first

Startups, by definition, are small operations. They may even comprise just one person, so there might not be much of a company “culture” in place just yet. But when your culture does form, it will be a combination of your organisation’s values, beliefs and behaviours that have developed over time. The process of figuring out what this means for your new company makes that first hire that much more important.

Related: Hiring The Right Person Is Critical When Growing A Business

Before you start looking for a new addition to your company, then, take the time to define your business’s values first. What mindsets and characteristics are needed to fuel your mission?

3-pragmatic-tips-for-startups-making-those-critical-initial-hires_peter-holten-muhlmann-trustpilot_embeddedPeter Holten Muhlmann, CEO of Trustpilot, one of the world’s largest online review platforms, explained to me via email how his company does this:

“All your hires need to imbibe the company culture, the value of your brand and ultimately transfer it to your product,” Muhlmann wrote, “so that it is obvious to your customers what you stand for. A strong, value-based work culture built on integrity will raise the bar for your hires down the line for years to come.”

This CEO should know. Trustpilot employs more than 600 employees of 40 different nationalities across its seven global offices. If there is one thing he has ingrained in the workplace culture, he said, it’s that the success of his company – and the online review space in general – is completely dependent upon transparency and authenticity.

This is part of the reason why the Trustpilot platform remains “open,” meaning that its reviews aren’t moderated and brands can’t suppress negative reviews. It’s also why the task of maintaining Trustpilot’s core values and honest consumer feedback belongs not just to the company’s “compliance department,” but to every employee.

For your start-up, you should set objectives for short-term and long-term strategies to build the culture you want. This is why you should define values from the beginning, then use that knowledge to guide your hiring decision. The alignment of values must take place before new employees are brought on board.

Outline job roles and personality preferences

3-pragmatic-tips-for-startups-making-those-critical-initial-hires_developing-talent_embedded

By the time start-up owners realise they need to hire someone, they’ll often be experiencing an overwhelming workload. With such a full plate, you may find it tough to know exactly which roles and responsibilities need to be filled. Since most new launches have not had the time or pressing need to clearly define job roles or organisational structure, it is important that entrepreneurs do so before bringing on a new hire.

Checking off technical skills needed is easy enough, but finding someone with the necessary soft skills to excel in the position is what really matters. Some 93 percent of employers surveyed by Wonderlic for its Hard Facts About Soft Skills report emphasised that they considered interpersonal skills and critical thinking vital to look for in a new hire. However, finding that perfect cocktail of hard and soft skills can be a challenge.

Related: The 5 Traits (Some Surprising) I Look For When Hiring New Workers

Big data technology has a solution, of course. AI-powered recruitment solutions like Harver can do wonders to eliminate the guesswork when it comes to making that initial hire. The system measures both aptitude and attitude by using big data to scour through candidates’ profiles and match their skill level to job descriptions. From there, it uses machine learning to evaluate the person’s soft skills, problem-solving abilities and alignment with the company’s values.

This leads to more informed hiring decisions and a vastly improved likelihood of finding the right matches. As Harver’s CEO Barend Raaff explained to me via email,

“The costs involved with replacing employees can be huge,” he wrote. “We believe that a new hire should fit two categories: skill match and personality match. Aligning both these elements is the key to making informed hiring decisions and reducing turnover.”

Take a step back and critically examine why you need to bring on a new hire. What responsibilities will he or she have? Why those responsibilities? And what skills will be necessary to fulfill this role? Failing to define these criteria will make it more difficult to find the perfect fit. So establish the personality and skillset you need, right from the beginning.

Understand How to Develop Talent, Not Just Find It

Unless you have a huge budget to hire someone with years of experience, one of your greatest challenges in hiring, as a start-up, is being able to spot potential. Furthermore, start-up leaders must understand how to properly develop the people they actually bring on board.

When you bring on younger talent with less experience, make it a point to check in and monitor that person’s development. A performance-management system like 15five can make it easier to accurately assess employee engagement across the board. The tool uses quick surveys to acquire feedback and keep up on issues like morale and performance.

Related: Hiring Tip: Ask About The Candidate, Don’t Talk About The Position

Along the way to reaching your milestones, you can set goals and priorities, along with recognition systems. 15five opens up channels for employees to share their thoughts and suggestions with upper level management.

Overall, job stagnation is one of the top reasons why employees leave a position, according to Glassdoor.

Entrepreneurs thrive on growth and improvement. If you can commit to promoting these goals for your start-up, its outlook will only grow brighter as time goes on.

So, don’t fall victim to making a hasty hiring decision you’ll later regret. Setting a clear vision and defining important requirements is the way to identifying the perfect candidate; enacting a system that continues talent development is the way to keep that talent long-term.

This article was originally posted here on Entrepreneur.com.

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