Employee v. Independent Contractor

March 25, 2016 by Jeff Messina Leave a Comment

In the context of Unemployment Compensation Insurance in Vermont, the term “employee” is not defined. The Department of Labor (“The Department”) simply refers to an “employee” as an individual who is entitled to be covered for unemployment purposes. Therefore, the distinction between employee and independent contractor is unclear, and contractors need to be cautious of the distinction and its implications.

In Vermont, it is the nature of the relationship between an employer and an individual that determines if they are an “employee” or an “independent contractor” for purposes of Unemployment Compensation Insurance. Accordingly, The Department presumes that an employment relationship exists between an employer and an individual hired and requires unemployment insurance coverage unless and until the employer is able to demonstrate each and every criteria of the three part so-called “ABC Test.”

The “ABC Test” three-part factors must all be met for an individual to be deemed an independent contractor under Department analysis:

A. The individual has been and will continue to be free from control or direction over the performance of their services, both under contract of service and in fact;

B. Services performed are either outside the usual course of business for which the service is performed, or service is performed outside all places of business of the enterprise for which the service is performed; and,

C. The individual is customarily engaged in an independently established trade, occupation, profession or business.

It is important to note that The Internal Revenue Service (IRS) uses a separate, less comprehensive test to determine if an individual is an employee or an independent contractor; and The Department follows Vermont law which uses the “ABC Test”. Therefore, It is likely that under Vermont law an individual may be considered an employee, whereas under the IRS test, the individual would be considered an individual contractor.

The experienced attorneys at Bergeron, Paradis & Fitzpatrick, LLP, can provide insight and direction into this complicated distinction, and represent your company’s interests if The Department of Labor is investigating your business for missclassified workers.

Appealing a DCF Substantiation of Abuse or Neglect

January 6, 2015 by Jeff Messina Leave a Comment

The Vermont Department of Children & Families (DCF) Family Services Division investigates reports of child abuse or neglect and is required by law to determine whether the actions reported should be substantiated. A substantiated report means DCF decides the report is based on what it considers accurate and reliable information that “would lead a reasonable person to believe the child has been abused or neglected.”

Anyone substantiated for child abuse or neglect may challenge the decision, and the law provides opportunities for review after a recommendation of substantiation. The first chance for review is from an independent reviewer; the second is a Fair Hearing; and, finally, in some cases, review by the Vermont Supreme Court.

People substantiated on or after September 1, 2007, have the right to request a review to challenge the substantiation before their name is placed on the Child Protection Registry (Registry). If substantiated, DCF will send a letter stating it intends to add the name to the Registry, and that the individual has the right to request an independent review within 14 days of when the letter was mailed. If a request for independent review is not made within the allotted time, the name is added to the Registry, DCF’s decision is final, and any further right of review is lost.

Upon a timely request for independent review of the substantiation, DCF will provide the time and place of the review, the review procedures – including ways to submit information for the independent reviewer to consider – along with copies of most of the investigation documents DCF relied on to recommend the substantiation.

After holding the independent review, the reviewer has three options: he or she may (1) reject or overturn the substantiation; (2) uphold the substantiation; or, (3) place it on hold and direct DCF to investigate further. Notification of the decision is provided. If the independent reviewer upholds the substantiation, the record will immediately be added to the Registry. Should that occur, the law presents the right to appeal the decision to the Human Services Board (Board). There is a deadline to request this appeal, and if missed, any further right to review is lost.

The appeal to the Board is basically a trial (called a Fair Hearing), though it is not held in a courtroom by a judge, but rather a conference room in a State building by a Hearing Officer. During this Fair Hearing, the State will produce witnesses, experts and other evidence in an attempt to prove its determination of substantiation was justified. Opportunity is given to cross-examine the State’s witnesses and experts, and bring independent witnesses and experts to show the substantiation was not reasonable, or justified. It is important to realize, however, that the State will be able to cross-examine those witnesses and experts. In addition, the accused has the opportunity to testify; though, the State can ask questions.

Much like the independent reviewer, the Hearing Officer may reject or overturn the substantiation; or, (2) uphold the substantiation. The Hearing Officer will give his recommendation to the entire Board, which then decides whether or not to overturn or uphold the substantiation. If the substantiation is upheld, there may be one last opportunity to appeal the decision: a petition to the Vermont Supreme Court. While the Court might grant the petition and hear the matter, new evidence is not presented. The issues are relegated only to matters of law.

Where a charge of abuse or neglect is substantiated, the individual’s name is placed on the Registry for at least three (3) years if the designated child protection level is 2 or if substantiated before age 18. If the designated child protection level is 1, the name remains on the Registry for at least seven (7) years. Being placed on the Registry may have serious consequences. It could limit the ability to have contact with children – any children – and may limit job opportunities, in addition to other costs.

The DCF substantiation process is complex and time consuming. It usually involves the police and States’ Attorneys, as well as doctors, social workers, and The Office of The Attorney General. The entire incident can be very stressful, with real consequences for entire families that can last for many years. The experienced attorneys at Bergeron, Paradis & Fitzpatrick, LLP, can assist in every step of this complicated process – from the initial investigation through and including each stage of the appeals process.

Small Claims Court in Vermont

July 17, 2014 by Jeff Messina Leave a Comment

There are two basic types of civil courts in Vermont: Courts of Law and Courts of Equity.

Courts of Law, in simplest terms, apply the facts of a case to the applicable law and determine the outcome by analyzing the facts under the law. Courts of Equity, on the other hand, endeavor to apply reason and balance to the facts, attempting to arrive at a decision based on fundamental fairness. Vermont’s small claims court is a combination of the two.

Vermont’s small claims court provides a low-cost forum for pro se litigants to bring suit in civil matters by following statute and common law (Law) and applying basic tests of fairness to the given set of facts (Equity) without the formality of a standard civil trial. (Pro se litigants are not represented by a lawyer.) Plaintiffs who claim harm can bring an action in small claims court to seek damages in an amount not to exceed Five Thousand ($5,000.00) Dollars.

Small claims court is available to anyone at least 18 years old with a claim for money damages.

However, a Plaintiff’s cause must be his or her own – a person cannot sue on behalf of a friend or relative. Although, a Plaintiff under 18 years old or under a guardianship, may have a parent or guardian sue on the Plaintiff’s behalf. Small claims court is also available to corporations and partnerships.

A benefit of small claims court is a Plaintiff can argue his or her side of a case in his or her own words, and offer written (according to the Rule) and testimonial evidence for proof without the need for a lot of research or technical legal jargon. Also, because the Court realizes pro se litigants are not lawyers, some of the formal rules of court procedure are simplified. For instance, though the Rules of Evidence are recognized, they are not strictly applied as in other courts.

It is important to note, however, that while the procedure is less formal than a standard civil suit, a Court’s decision is just as real and binding. To be clear: a small claims court proceeding is an official judicial hearing in every sense – just without some of the usual formality. Indeed, a Plaintiff waives his or her right to a jury trial by filing a small claims action.

While the small claims court was established to resolve minor legal disputes without the need for lawyers, parties are, of course, entitled to be represented by counsel.

Bergeron Paradis & Fitzpatrick, LLP holds a seminar on the first Tuesday of every month at 2pm in the Costello Courthouse located on Cherry Street in Burlington to help pro se litigants prepare for their small claims case.