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Info You Can Use: Employee or Independent Contractor

March 3, 2010

by:

Joe Patti

As usual, the folks at the Non-Profit Law Blog provide some useful links. I will quickly point out a short piece about the Senate has recently passing a jobs bill that will provide incentives to hire and keep employees.

The measure would exempt private employers, including nonprofit groups, from paying their share of Social Security taxes for employees they hire through the end of 2010. The new hires must have been out of work for at least 60 days.

They would get an additional $1,000 bonus if they kept the employee on the payroll for a full year

I had heard about this a few weeks ago, but it never occurred to me that this would be a real boon for the non-profit world where a little savings can go a long way. I wish I could remember where I heard it, but I was listening to a radio show where one of the panelists said he wished the money going to public works was directed to non-profits because you could create hundreds of non-profit jobs for every construction job created.

The main of what I wanted to discuss is examining the employment status of people who work for your organization. According to Jessica R. Lubar, a lawyer at Venable LLP, the IRS is undertaking a study of employment tax compliance. They will be focusing on three areas: worker classification, fringe benefits and officer compensation.

What I wanted to point out specifically was the issue of worker classification. I know of a number of organizations that call those who work for them independent contractors so that they don’t have to attend to any of the tax withholding details. However, if the IRS doesn’t call them the same thing you do, there could be a lot of trouble.

“A worker is considered an employee if the employer exercises the requisite amount of control over the employee under common-law principles. Over the years, the courts and the IRS have articulated certain factors that are considered in making that determination. The IRS organized the factors that are considered into three categories: (1) Behavioral Control – whether the business has a right to direct and control how the worker does the task for which the worker is hired; (2) Financial Control – whether the business has a right to control the business aspects of the worker’s job; and (3) Type of Relationship.”

If you have made a mistake in classifying an employee as an independent contractor, there is an opportunity to rectify that situation and obtain relief from the penalties of that mistake. Lubar outlines these in the entry. You would obviously want to consult a lawyer because I am already confused by the first of the three requisite criteria–not treating a person like an employee. That seems to me to imply you have been treating the person like an independent contractor which means you are in the clear.

Perhaps the distinction is in whether you contractually had the right to behavioral and financial control but never enforced it thereby treating someone as if they were an independent contractor when technically they were not.

Guess that is what the lawyers get paid to tell us.

Info You Can Use, Leadership, Management Philosophy

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Trash Talkin’ About The Arts

March 2, 2010

by:

Joe Patti

First it was Indianapolis Museum of Art and the New Orleans Museum of Art wagering paintings on the outcome of the Super Bowl. Now I hear Dallas and Ft. Worth are talking smack about which of them has better cultural assets.

Please people, art is only demeaned by using it as a prop in a bet or a gauge of greatness. Oh. Well, actually I guess that is where a great deal of it obtains its value from.

I think a lot of us would be pleased to have our communities talking about how much better the arts and culture are here than in the next place over. There are sports rivalries from high school to professional levels and the fear/pride of someone else getting there first got us to the moon. Without evoking the old “if we can put a man on the moon, why can’t we…” trope, cultural rivalries may be something to inspire locally.

You wouldn’t want to compare yourself to New York City, because as evidenced by the end of the Dallas-Ft. Worth piece, you can’t compete with them for culture or condescension. But it could be mutually beneficial to get into a friendly rivalry with a similar municipality/county/town across the state or across state lines. Something that drives both locations to make progress against the other–but also celebrate the other’s successes, perhaps begrudgingly.

In the best of worlds, both locations might advocate for funding for the other, writing letters on their behalf. Because of course, the other guys may be more uncouth, but they are still a sight better than places X, Y and Z. If they were distant enough from each other not to overlap their audiences, some of the organizations could block book the same artists and then quiz the artists about whose theatre was nicer, whose audiences were more enthusiastic, etc. Done good naturedly, it could make artists excited to visit the other location. If the story about Philadelphia area theatres sharing the same production is any indication of the future, attempts at oneupmanship may just add to the fun.

My technical director does a version of this with the technical director at a partner organization. They send the company members to do strange things to the other one. He even has me holding up groups’ departures until he can instruct them in proper execution.

Everybody wins if both communities invest themselves in the rivalry. In addition to getting people excited about what might be coming and how they might top the other guys at their own game, it also gets people looking around for something of value to boast about in their community. Soon you get around to boasting about the quilts in all the bed and breakfasts having been created by a local artist whose quilts appeared in a show at the Smithsonian. Then you start to realize just how great it is to live where you do and how many extraordinarily talented people you never knew you had has neighbors.

General Musings, State of the Arts, Terms and Ideas

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Turning Waves Of Crisis Into Minor Ripples

March 1, 2010

by:

Joe Patti

You ever tried to get a large group of performers to the airport to catch their flight in the face of an impending tsunami?

Well, I have.

It is actually not as bad as you might think. Given the alternatives of a hurricane, earthquake or volcanic eruption, with the opportunity that either of the latter two will spawn a tsunami about which you will get at most 15 minutes warning, a half day’s notice is a luxury. Which is what I told the performer who remarked how calm I was in the face of it all.

It helped that the departure and arrival airports were both still open and the streets between the hotel and airport were virtually abandoned. Really the only complication we had was discovering the rental car return was directly under the civil defense siren when it blared its hourly warning.

I know I have mentioned it before, but one of the key characteristics of good management is staying cool in the face of adversity. This is especially valuable in the performing arts where you are not just providing a good example for your employees, but also creating a calm environment for artists to perform in. One of the principles a former supervisor ingrained in me was to try to make a traveling artist as comfortable as possible. His philosophy was that while our facility wasn’t home, we might be stop 15 in a 25 city tour and could contribute to getting the best performance of the person by reducing as much anxiety possible and providing the most hospitality we could.

Easy to say, tough to do though.

By the time I started working there, I already pretty much understood this to be the case. However, there was a time I wasn’t as empathetic. Between growing up in an environment that emphasized self-sufficiency and working in a few environments that were not terribly sympathetic to the needs of the regular employees, much less the performers, there was an incident I am somewhat embarrassed about that sticks out in my memory.

I was working for an organization that actually was very sympathetic and attentive to the needs of everyone working for them. You were expected to work hard, but an effort was made to find some equitable time off in return. Not being used to this, I was needlessly always waiting for the other shoe to drop and was prepared to defend myself when it came.

Not a very good outlook to have when one’s duties include company management. One of the actors twisted her ankle so I drove her to the doctor. It turned out she needed to go back for a follow up at some point and wanted me to drive her again. At the time, we were very busy and I told her I didn’t that we could drive her again later in the day.

This may sound innocuous to read and it really wasn’t a terrible or nasty thing to say. After all this build up, you may have been expecting something a little more horrific.

However… What I was thinking wasn’t so nice. I pretty much figured she was being a prima donna and like most actors was over dramatizing the whole situation into something just short of requiring amputation. I thought she needed to calm down and take a reality check. My job would have been so much easier if I didn’t have to deal with the actors.

Of course, I was talking as if I was being terribly set upon in the first place so I guess there was a little acting going on both sides. She proved to be the better actor because I got in trouble for my performance when she went to the managing director.

What I later realized I failed to understand was how distressing it is for performers to have any part of their instrument damaged. If you are not fully able to provide what you were hired to do for any significant length of time, you face the prospect of your career coming to an end. We hear about performers insuring the body parts which provide their iconic status and wonder at it all. But I would bet more people would do it if it were financially viable. This woman was at the point in her life when she wasn’t healing as quickly as she once did and this injury was likely a reminder of the precarious position she inhabited.

So now I work to anticipate any potential sources of anxiety and approach similar situations a little more seriously. Which is not to say I still don’t occasionally inwardly roll my eyes at some of the situations I run into. But as with many things, forewarned is forearmed, making real crises easier to handle.

Though it is also gratifying not to have the crisis be as great as predicted.

Management Philosophy

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Who Will Fight For It?

February 25, 2010

by:

Joe Patti

Well my post on Tuesday on the changes in wireless microphone rules garnered the most hits in one day that I have ever received. I am actually not sure exactly where all the visitors heard about the entry. The old tracking software isn’t giving me the detailed clues I thought it would. Anyhow, if you are a returning visitor, no matter why or what the source, welcome.

Earlier this month, the Clyde Fitch report linked to my entry on the continued marginalization of arts education in the class room asking, “but who will fight for it?”

That question has been echoing in my mind for the two weeks since. The reverberations reinforced by incidents like this story highlighted by Richard Kessler over at Dewey21C on the practice of schools dropping certified arts teachers in favor of outsourcing the task to actors. Don’t get me wrong, I am all for actors getting paid to ply their craft. There is just no mystery about the long term implications of accepting ever decreasing arts exposure and experiences in education.

The other situation that has kept the question of who will fight for arts education going through my mind is that my state now has the fewest instructional days in the country due to budget cuts that furlough teachers 17 days out of the year. Last week we had 200+ students drop out of a free performance at the last minute because the furlough days had put them so far behind, they couldn’t afford the time for a field trip. For most of these students there wasn’t even the factor of having to pay for a bus because the school is so close, it regularly uses our parking lot as an assembly point for disaster drills.

Over the next month or so, the instructor of a music class for those studying to teach K-12 is going to be on our stage getting the students up and moving putting together a project. I was standing in the wings today brimming with pride for the instructor who is doing a fantastic job on this first day of getting the students to move. The thing he has them working on combines history and literature with dance and music–and that is what I saw in just this first day. There could be a lot more wrapped up in this thing before they are done.

But as I stood there thinking I have to tell the instructor’s divisional dean that they need to get him in a tenure track position and never let him go, another part of me is wondering if there is any use in having all these students work so hard if there is an ever narrowing chance of putting what they are learning into practice.

Of course, there are many schools bucking this trend and they aren’t all in the higher tax base districts. I recently nominated a local school arts program for recognition for fighting the good fight using the arts to give students an outlet for the problems they face.

I don’t want to position the arts as prescriptive only, but the truth is in the aftermath of the earthquake, a lot of Haitians came together in song. The arts are the basic factors which tie us together. So when arts teachers and artists are derided for being paid to teach and produce what is fun, it is because music does soothe the savage beast. Arts and cultural experiences answer fundamental needs.

I think people may confuse the primal emotional satisfaction they experience with the fulfillment of need they gain from disposable products. Plastic forks and paper plates allow you to continue enjoying a picnic or party rather than spending the time dealing with dirty dishes while everyone else has fun. Hearing a song/seeing a show/looking at a painting quickly puts you at ease and because you can’t identify exactly why, you equate it with the same feeling you get using disposable conveniences.

It wasn’t really until this moment that I begin to understand why people like Scott Walters often bring up the idea of slow food in relation to the arts. Just as fast food can create a disconnect and lack of appreciation for what is really invested in a well prepared meal, so too can being removed from the methods of arts production. It isn’t just a matter of lack of exposure means people don’t have an opportunity to enjoy and understand the arts, it is also a matter of not being cognizant of what has been invested in its creation.

Familiarity breeds contempt. At one time high wire circus acts were the main attraction. But as people became more familiar with the experience, there became a greater need to up the ante for the act to hold peoples’ interest. It wasn’t enough to just walk across forward and backward with and without a net. But have you ever tried to walk a rope suspended only a couple feet off the ground? I tell you, you gain a new respect for even the simple stuff.

I am not saying anything new here, of course. Studies have shown that people who have hands on creative experiences are more likely to participate in the arts later on in life.

Who will fight for the arts? Well, we all have to, even if it is in small increments every day. Certainly, the big crusaders need to be there too, but they can’t be seeking success in spite of the inaction of everyone else. If you succumb to the despair of the direction of things and give up creating opportunities to learn and experience, then there will be no one trained to teach art when someone comes looking.

Art(ist) Education, Arts in an Age of Technology

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