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Are You Stuck with All of the Terms in that “Standard Agreement”?

If you’ve been following Bonne D. Graham on SAP Radio’s Coffee Break with Game Changers, you know I’ve been part of a roundtable discussion with my esteemed colleagues, Nina Kaufman and Renee L. Duff. I naturally raised the issue of worker misclassification in at least two of the three shows we’ve recorded so far. It’s very important that business owners know about the harsh, if not bankrupting, penalties that can be assessed by the Internal Revenue Service (“IRS”), Departments of Labor (“DOL”), and Workers’ Compensation Boards (“WCB”) or agencies. This prompted Bonnie to share a personal example. She has long taught Adult Education Courses for the Great Neck school district on Long Island, and she had recently been sent a packet of numerous documents converting her independent contract to employment.

ACTION ONE: DEFINE THE CONFLICT.

Bonnie and the school district seemed to disagree about her work classification.

ACTION TWO: IDENTIFY THE INTERESTS.

She wants to maintain her independence, in part because she already had full-time employment at SAP. One of her listeners also had Bonnie concerned that the school district might be converting her independent contract to employment as a means to claim her intellectual property (“IP”) as its own. She obviously doesn’t want to hand over all of her creative work for free.

She thought they could continue the relationship as they had for the past 10 years. She believed she was a true independent contractor. She wished she had a choice to remain independent and continue teaching her courses.

We don’t actually know what the school district believes, or wants, so a conversation was encouraged. In preparation for that call, I had hoped to explore possible motives and humanize the school district, if nothing else. We must remember that even when we are in conflict with an entity, the entity is made up of people with wants, needs, and fears like ours.

The school district likely thought that Bonnie was a true independent contractor, too, but something apparently changed the minds of the administrators. They probably believed they were doing the “right” thing by making her an employee. They probably wanted to protect themselves from penalties for worker misclassification, while also keeping Bonnie’s courses on the schedule. They presumably wished they didn’t “have” to convert their relationship, much less end it, in fear.

ACTION THREE: PLAY WITH THE POSSIBILITIES.

If Bonnie could have had this conflict resolve in any way possible, she probably would have continued exactly as she had. The school district might have had the same vision for an ideal outcome. How might they have achieved that result?

ACTION FOUR: CREATE THE FUTURE.

As Bonnie mentioned in a later podcast, she took action to end the relationship under the circumstances. Regardless, some of the actions that she or the school district could have taken were:

  1. Discuss the purpose of the conversion and determine if there was a compromise available
  2. Consult their respective attorneys and have them negotiate a compromise
  3. Discuss a compromise with the necessary decision-makers

You are never stuck with the terms of a standard agreement. You can always negotiate exceptions to standard terms, removal of provisions, and addition of others. Often, you will learn a lot about how well you will work with an entity when you negotiate with it.

ACTION FIVE: STAY ON PARR.

Bonnie and the school district may have parted (on good terms), but they are still achieving results they want. She will continue teaching and speaking in other settings. The school district will find other instructors. They will both plan, act, revise, and repeat, until they fulfill their visions under whichever circumstances arise. Will you?

Nance L. Schick, Esq. is an attorney, arbitrator, mediator, and conflict resolution coach based in New York City. She is the founder of The Law Studio of Nance L. Schick, where she and her team of employees, vendors, and strategic partners deconstruct conflict and re-create it as opportunity, using a holistic, integrative approach. Nance resolves conflict and cultivates leaders, using her EEOC training, as well as her proprietary Third Ear Conflict Resolution process, which is described in more detail in her first book, DIY Conflict Resolution: Seven Choices and Five Actions of a Master. She is also an award-winning entrepreneur, who has been acknowledged by the New York Economic Development Corporation/B-Labs (Best for NYC 2015 finalist), U.S. Chamber of Commerce (2015 Blue Ribbon Small Business), Enterprising Women Magazine (Honorable Mention, 2014 Woman of the Year awards), and Urban Rebound NY/Count Me In (2013 Pitch Competition finalist).