Individualised Funding: Legal Perspective

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

2. 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.

3. 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

4. Responsibilitiesof 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

5. 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?

6. 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

7. 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?

8. 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

9. 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)

10. 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

11. 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

12. Questions?