IMAG1579[1]Is my assistant an employee that requires industrial insurance coverage?

The actual worker’s compensation law is as follows:

NRS 616B.603  Independent enterprises.

1.  A person is not an employer for the purposes of chapters 616A to 616D, inclusive, of NRS if:

(a) The person enters into a contract with another person or business which is an independent enterprise; and

(b) The person is not in the same trade, business, profession or occupation as the independent enterprise.

2.  As used in this section, “independent enterprise” means a person who holds himself or herself out as being engaged in a separate business and:

(a) Holds a business or occupational license in his or her own name; or

(b) Owns, rents or leases property used in furtherance of the business.

3.  The provisions of this section do not apply to:

(a) A principal contractor who is licensed pursuant to chapter 624 of NRS.

(b) A real estate broker who has a broker-salesperson or salesperson associated with the real estate broker pursuant to NRS 645.520.

 

So if you are a licensed real estate agent with a broker, no, your broker does not require you to carry worker’s compensation.

But what if you are a licensed agent? And you hire an assistant? A licensed assistant. Remember, this is different than an unlicensed assistant. An unlicensed assistant, is your employee, and you need to treat them like one and here are the rules on that click HERE.

But that fellow REALTOR® that you hired help you with transactions. Perhaps they are on a team with you. What happens when you have them only in your office? Working hourly? Are they still just a fellow agent? Or have they become your employee?

The definition of employee was addressed in the Nevada Legislature in Senate Bill 224. The law in N.R.S. 608 states, a person is conclusively presumed to be an independent contractor if they can meet the following 5 part criteria, including some sub-criteria which I will outline below. But let’s go back to why this issue came up in the summer of 2015 it was caused by the recent Nevada Supreme Court ruling Terry v. Sapphire Gentlemen’s Club  In the Club case, topless performers at the Sapphire Gentlemen’s Club, brought suit against Sapphire asserting they were employees, not independent contractors, and therefore were owed minimum wages pursuant to NRS 608. Now, industrial insurance and minimum wage is not the same, but they are close but it is close enough for helping to understand whether you need insurance for your assistant.  The key is control, control over the assistant.

Here is the 5 part test that if they meet all of these, no insurance likely needed; follow it down, don’t give up and we can discuss industrial insurance after.

  1. They have employer identification number or social security number or has filed an income tax return for a business or earnings from self-employment with the Internal Revenue Service in the previous year;
  2. They are required by the contract with the principal to hold any necessary state or local business license and to maintain any necessary occupational license, insurance or bonding;
  3. They meet three or more of the following:
  4. Notwithstanding the exercise of any control necessary to comply with any statutory, regulatory or contractual obligations, the person has control and discretion over the means and manner of the performance of any work and the result of the work, rather than the means or manner by which the work is performed, is the primary element bargained for by the principal in the contract.
  5. Except for an agreement with the principal relating to the completion schedule, range of work hours or, if the work contracted for is entertainment, the time such entertainment is to be presented, the person has control over the time the work is performed.
  6. The person is not required to work exclusively for one principal unless: (I) A law, regulation or ordinance prohibits the person from providing services to more than one principal; or (II) The person has entered into a written contract to provide services to only one principal for a limited period.
  7. The person is free to hire employees to assist with the work.
  8. The person contributes a substantial investment of capital in the business of the person, including, without limitation, the:
    1. Purchase or lease of ordinary tools, material and equipment regardless of source;
    2. Obtaining of a license or other permission from the principal to access any work space of the principal to perform the work for which the person was engaged; and
    3. Lease of any work space from the principal required to perform the work for which the person was engaged.

Hello, welcome back to reality. This is what lawyers deal with all day. Confusing right? It’s not really. The point is, is this person independent of you? Are they a painter coming into paint your office? Or a consultant you are hiring for a short period of time?

Or are they a licensed real estate agent?

That works on your files with you, a partner?

How are they paid? Do they only share commissions that you receive from your broker?

Or are they paid hourly and expected to be in your office at certain times?

If they are paid hourly and told to present at certain times and in other words as stated above they do not have “control over the time the work is performed.” It’s likely they are an employee.

Questions

Darren 702 245 1787

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