The employee/Independent contractor scenario in spas and
medical spas is very complex. The determination of whether a professional staff
member is an employee or independent contractor is not easy to address. One
thing that IS clear; the agreement that may be in effect is not the most significant
issue. You can cal a professional staff member whatever you want to call them in an agreement, but this does nt control the ultimate determination.
Many owners and professional staff want to be independent
contractors but the reality is in many cases, the relationship is not
sustainable and the Internal Revenue Service has been looking at the spa industry more closely
(possibly due in large part to tipping structures, but they are looking at the
industry). The Service has been looking at many “tip” based businesses such as
the taxi industry, restaurants and salons and spas.
The IRS has ruled sometimes that an independent contractor
was really an employee because the business supplied TOWELS and LINEN! WOW!
A fundamental approach will be based on two key aspects of
the relationship: 1. "control" over the professional staff members
hours and days of service, and 2. requirement to utilize certain product lines
or practice policies and protocols for certain procedures.
These are not easy issues to address because there are
conflicting issues and goals. On one hand, the spa needs staff to be available
during operational hours. It would be problematic to allow professional staff
to decide the days and hours of service. However, providing schedule is a
strong element of “control” over the staff member and this tends to be an
employment situation.
The second issue is no less problematic. A professional staff member may support a
certain product line that is not offered by the facility. He or she may have a
different protocol for a procedure. The
professional staff member may have his or her own protocols for a procedure –
even something as seemingly straight forward as micro-dermasbrasion. An ancillary concern is when there is a mixture
of employees and contractors. The contractors may have more freedom to perform
services and procedures and they deem appropriate and this can cause staff
problems.
I address many such issues every day and please see my website http://www.medicalandspaconsulting.com
Paddy Deighan J.D. Ph.D
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