Tomorrow (Monday, January 11, 2021) the county is officially in the second phase (1B) of the vaccination program. This phase is supposed to provide shots to persons over 75, persons with underlying conditions, health care workers, and a variety of groups such as the police, EMT people, teachers, and transportation workers. My understanding is that the county has not been told how many vaccines they can expect to receive but according to the Times Union, Chairman of the Board of Supervisors Todd Kusnierz announced that he expects approximately 30,000 vaccines.
There is nothing on the county website as to where the county plans to set up its vaccination sites or anything else of significance regarding the program. For some reason, the press conference updating the community on COVID that included Kusnierz, Saratoga County Health Commissioner Daniel Kuhles, and Supervisor Tara Gaston has mysteriously disappeared from the county website.
If you navigate the county website for information on the vaccination program you end up at this page on their site. If you click on the button labeled “COVID-19 Vaccine” you end up at the New York State Health Department site.
My main questions have to deal with the county’s preparedness. Where will the sites be and what is the potential number of vaccines that the county will be able to do at each site each day?
I wrote to our Supervisors Tara Gaston and Matthew Veitch asking for this really basic information. Remember, the program officially begins tomorrow.
Supervisor Gaston did reply. In fact she was courteous enough to reply at 9:00 PM this evening (January 10, 2021).
In her email she wrote, “I have pasted a post below that will answer most of these questions.”
With respect, she did not actually answer any of my questions. She alludes to the county having identified locations but doesn’t actually identify any and asserts that these locations are “heavily dependent on knowing the doses available.”
Her Facebook page adds, “Tomorrow I will be reviewing information on available and potential PODs (Points of Distribution) with public health and County leadership to determine additional locations with a focus on efficiency and equity.”
She writes, “I expect to provide additional information tomorrow, or Tuesday’s Health & Social Services meeting at the latest, after reviewing the additional information I requested staff obtain and compile on each location. “
Hopefully, my questions will be answered then.
Full Text Of Supervisor Gaston’s Email
I have pasted a post below that will answer most of these questions. There are current or potential open POD locations with vaccination capacities from fewer than 100 individuals to thousands of individuals in a day. Schedules and locations of these PODs are heavily dependent on knowing the doses we will have available – 100 and 1,000 and 10,000 doses would each have different deployments. These PODs are different than closed PODs, which would be limited to individuals at that facility that meet eligibility requirements; a nursing home would, for example, generally be a closed POD. I expect to provide additional information tomorrow, or Tuesday’s Health & Social Services meeting at the latest, after reviewing the additional information I requested staff obtain and compile on each location.
did announce eligibility expansion to Phase 1b starting tomorrow, we are unable to make vaccination appointments until we know when and how many more doses we will receive.
This is an issue shared by other vaccination providers in our area, as you can see when using the state’s Am I Eligible website (link below). This does not mean that there are no vaccines, but that all available doses are allocated.
Additionally, the state vaccination plan requires that individuals register through the state system and obtain an appointment for vaccination; we cannot simply have open clinics for any eligible individual. Once appointments are available, we will be opening a registration call line to assist eligible individuals who may be less comfortable with or have limited access to technology.
I also know there are concerns on where vaccine points of distribution (PODs) will be located in the county. There are a number of sites where SCPHS has previously drilled and prepared, as well as a number of new options available. Tomorrow I will be reviewing information on available and potential PODs with public health and County leadership to determine additional locations with a focus on efficiency and equity.
[JK: There was a problem accessing the videos when I first posted it. It is fixed]
At the January 5, 2021, City Council meeting, in an uncharacteristic public expression of frustration, Mayor Meg Kelly expressed her concerns about the lack of communication between Public Health Commissioner Daniel Kuhles and the greater Saratoga Springs community. She noted that Dr. Kuhles has yet to even contact the Saratoga Hospital’s CEO, Angelo Calbone.
WAMC has also met a lack of communication from the county’s public health department. A request last week submitted through a public relations firm retained by the county to speak with leaders about a recent outbreak of COVID-19 cases traced to an underage party in the Saratoga County Town of Wilton went unanswered.
Lucas Willard/WAMC January 6, 2021
Below are three highlights I have excerpted from the meeting along with the full unedited exchange between Mayor Kelly and Supervisor Gaston.
Under an executive order from Governor Andrew Cuomo to reassess policing practices, municipalities were charged with establishing commissions to carry out re-evaluations of their law enforcement departments and to report their findings to the state.
Saratoga County’s committee posted a survey for the public to respond to on the county’s website. The original survey was so long and ineptly crafted that they ended up issuing a “condensed survey” which, while shorter unfortunately still has many of the same flaws as the original.
You can access both the long version and the condensed version on the county’s website. There is no explanation as to why there are two versions.There are no directions as to which one you should fill out or if you should fill out both.
The original version begins with this:
If you have the patience to read through this text, it is basically a promotional piece touting how professional the county’s Sheriff ‘s Office has been in developing their procedures and policies. Aside from the question of the appropriateness of using this as an intro, its length and irrelevance only acts as a disincentive to continue to wade into the survey.
If this were not enough to discourage potential participants, consider the link at the bottom of the page:
This link takes you to “Appendix A and Appendix B” which together run some 33 pages and contain the Saratoga County Sheriff’s Department’s policy and procedure manual.
Apparently modesty was not a consideration in the drafting of their policy manual because it begins:
The Saratoga County Sheriff’s Office will be recognized as one of the finest law enforcement agencies in the State of New York. Our members will be renowned for their professionalism, dedication to excellence, teamwork, community partnerships, and commitment to making Saratoga County a safe place to live, work and raise a family.
As though they had not digressed from their survey and self promoted enough, the first page where the actual questions begin starts like this:
So yet another long preamble before you get to that first question:
“Do you have any concerns about how the Sheriff’s office maintains compliance with model policies promulgated by the MPTC?* “
If you have not been a rigorous participant and learned what the MPTC is, it’s time to go back and read the fine print (so to speak).
Also, note the red asterisk. This indicates that you are required to answer the question. Your options are: Yes No Maybe.
If there is anything that causes me to give up doing a survey it is being asked to select answers that I do not consider valid. The only thing I know about the MPTC is the short description the survey provides so I don’t really know if I have concerns or not. To me “Maybe” isn’t an accurate answer either. I am not about to do research on the organization and replying “I do not have enough information to answer this question” or even “I don’t know” are not options.
Following this question is an entry with the heading “questions/comments.” As this is an anonymous survey, what is the value of asking a question as there is no way for the promulgators of this survey to get back to you with an answer.
At this point I would normally quit responding but as a service to the readers of this blog, I continued.
Here is the second page/question:
Ok. So this question has an even longer required background piece to read before answering than the first one. At this point I gave up taking the survey seriously and just started going through the survey arbitrarily putting in answers because pretty much everything required you to provide an answer to move to the next page. What I found was that almost every question or set of questions required you to read a lengthy introduction.
The Condensed Version
There are now two surveys on the county’s website.
As noted earlier, there is no explanation on the site as to why there are two surveys nor any indication whether you are supposed to fill out one or both.
The “condensed” version is an improvement in that it provides a wider range of possible answers to some of the questions. For instance:
“Prefer not to say”
Possible answers on Condensed Survey
The “condensed” version has only nine questions and, in contrast to the longer version, none of them have to be answered in order to move on to the next. I assume that very, very few people filled out the long version so they came up with this one.
Unfortunately, it has questions like:
“Based on your interaction, if any, with members of the Saratoga County Sheriff’s Office, do you believe that those members treat whites better than non-whites?”
Here your choices are:
“Not applicable (no interaction with Sheriff’s Department personnel)”
My few interactions with the sheriff’s department did not give me any insights into whether the officers I dealt with treat whites better than nonwhites so none of these answers work for me. At least in this survey version I could skip answering.
More Poor Management
The poverty of the two surveys are yet another example of the county’s management problems. These surveys may be reflective of the county’s lack of interest in or commitment to police reform. Unfortunately, the continued revelations of mismanagement throughout Saratoga County government are so pervasive that one cannot totally write off the possibility that this is simply another example of their general ineptness.
Sadly in our county there is no such thing as accountability. No one ever seems to ask, “who was responsible for this?”
Bulger has been involved in Republican politics for decades, and is a former chairman of the Saratoga County Republican Committee and was district director to then-U.S. Rep. Chris Gibson when Gibson, now president of Siena College, was serving in Congress. Bulger is currently the regional administrator for the U.S. Small Business Administration, a job he would potentially lose with the end of the Trump administration.
It is possible that Mr. Bulger has the administrative skills to do the job, but the manner of his appointment does little to encourage confidence.
To say that the way he was selected was opaque would be generous. It was more like a black hole.
This blog has been highly critical of Supervisor John Lawler (Waterford). He bears a great deal of responsibility for the past problems at the county but he was on the money in his attack on Bulger’s selection.
Who did the interviews for a replacement? Were there any other candidates? I’m guessing not?”
“The fact that Mr. Bulger is the former chairman of the Saratoga County Republican Committee is terrible optics.”
John Lawler as quoted in the January 7, 2021 Daily Gazette
Bulger’s name was unceremoniously presented to the Board of Supervisors as one of about fifteen resolutions on the agenda for the January 6 meeting. The creation of the agenda was opaque. Supervisors attending the January 6 meeting asked repeatedly who crafted the agenda but could not get an answer. When pressed, newly elected chair of the board Todd Kusnierz denied that he wrote it, but did not offer any information as to who did.
We are talking about filling the most powerful position in the county. Under normal circumstances one would expect that an acting County Administrator would be appointed while a proper search was done.
That search would involve the public posting of the position. As with most high positions, an executive search firm would have been contracted with to seek out the best candidate. After all, this is the person who will essentially be running the county.
There remains the question whether this mysterious selection even met the requirements of anti-discrimination laws.
To choose the past chairman of the Saratoga County Republican Committee as the county administer behind closed doors and without a search is an example of Yogi Berra’s adage of “it’s deja vu all over again”.
The specific choice of Bulger is disturbing but the manner by which he was chosen is even more disturbing. Its tone deafness and heavy handedness mirrors the very problems the insurgents claimed they were going to end.
One might well ask where the Saratoga Springs Supervisors were in this sordid business. The answer is that they offered no criticism and voted for Mr. Burger.
I received a press release issued by Supervisor Tara Gaston. With no sense of irony she wrote:
“Supervisor Kusnierz launched his tenure with remarks on improving communication and transparency [JK: my emphasis] in county government, beginning with a thorough and public COVID-19 response plan.”
“It is therefore with hope, honor, and humility that I accept his (Kusnierz) appointment to lead the Board’s Health and Social Services Committee.”
Supervisor Gaston Press Release
Supervisor Kusnierz may have a “thorough and public COVID-19 response plan,” but other than announcing that his top priority would be getting a vaccine out and improving contact tracing, fewdetails were given.
For those of us who had viewed the successful change in county leadership with great anticipation, these developments have been a cold dose of reality.
The Saratoga County Board of Supervisors overturned decades of precedent by not promoting the chair of the Law and Finance Committee to the position of Chair of the Board of Supervisors. Instead they elected Todd Kusnierz, the Town of Moreau Supervisor, to that position. Kusnierz is a member of the insurgent group of Supervisors representing the larger municipalities in the county.
There was a controversy over who drafted the agenda for this meeting which was the Board’s regular reorganization meeting. The agenda is usually the responsibility of the incoming chair (who would normally be the Law and Finance Chair) in consultation with the retiring chair. But with the usual order of succession disrupted, no one, including Kusnierz, would take responsibility for the document.
The Board approved the selection of Steven J. Bulger as the new County Administrator. This ends the tenure of Spencer Hellwig. The usual suspects tried to challenge the motion by arguing that Hellwig was being unfairly fired. The problem was a kind of catch-22 situation. Firing would be a personnel matter creating issues of privacy. No one from the insurgents who voted to replace Hellwig engaged in the discussion. There was eventually a vote approving the appointment of Bulger to replace Hellwig. Gazette reporter Stephen Williams describes Bulger as a “political operative” who is about to lose his job with the federal Small Business Administration when Trump leaves office.
Interestingly, the Board decided to have Tara Gaston act as temporary chair for the purpose of electing the chair of the board. The insurgents needed her vote to elect Kusnierz. This is really unprecedented as well. The Republican Party has run the county for eons. They have always marginalized any Democrats elected to the Board. In his opening remarks, Chairman Kusnierz told the Board that his tenure would be inclusive of race, gender, and party. Rumor has it that Gaston will be chairing a committee.
The fact that the outcome of all the votes were a foregone conclusion, did not keep the usual subjects from tying up the meeting with self-righteous speechifying about alleged abuses by the insurgents.
Before we are able to vaccinate our community one of the only tools to protect out citizens is through contact tracing. South Korea is an excellent example of how aggressive tracing can stem the spread of the virus and thus bring back some normalcy to their citizens while saving lives.
Given the explosive spread of the disease and the adverse publicity in television news reports and newspapers about the lack of contact tracing by Saratoga county, one would have assumed this would be a dominant topic at their meetings. Regrettably this is not the case. In reviewing the minutes of the various committees of the Saratoga County Board of Supervisors the silence on this issue is eerie.
In the case of Tara Gaston’s Facebook page, she reports extensively and regularly about the current statistics of the progress of the disease but not a single word about the troubled contact tracing program.
On January 4, 2020 I wrote to the two Saratoga Springs Supervisors with a series of questions regarding the contact tracing program. As my representatives to the Board of Supervisors I was hoping that they would seek answers to these.
The full set of questions can be found below but to give the readers of this blog a flavor for what I was seeking here are several:
How many full and part time contact tracers does the county currently have?
Why does the county require applicants for the jobs to mail in their resumes rather than allow the use of fax, email, or a county portal?
How does the county measure the success of its contact tracing program and how do its efforts measure up currently?
My letter was respectful and I hope the readers of this blog share my own belief that it was reasonable for an elected representative to attempt to get answers for me.
A Primer On How Politicians Don’t Answer Questions
I am a veteran of asking questions of people in government without success. As a blogger I lack the status and reach of newspapers like the Times Union and the Daily Gazette.
Anyway, these are the three standard ways I get non-answers.
Don’t Acknowledge Or Respond At All
This is the simple one. Emails are not answered and telephone calls not answered.
2. Be Gracious And Say Nothing
The standard way politicians avoid answering questions they do not like is to write a pleasant note acknowledging the constituent’s inquiry and ignoring the questions.
This was the approach used by Supervisor Veitch.
A lot of your questions require answers from someone other than me. I would assume that the County has hired qualified and trained, Contact tracers legally and that they are working in accordance with all proper regulations.
The Board of Supervisors has authorized 75 contact tracing positions and my expectation in voting for that resolution is that all those positions will be filled as soon as possible, and we get those people doing the job of contact tracing.
Matthew E. Veitch
Email January 5, 2021
3. Respond In An Unpleasant Way Meant To Discourage Any Further Inquiries
In this approach the official responds in a way that is meant to discourage you from any future inquiries. The best purveyors of this approach slightly mask their hostility. They want to communicate to you the fact that they know they are not answering your question and that they know you know they are not answering their questions. They are communicating to you that they have no intention of answering your questions now or in the future. They want you to be aware that they are in a position of power (however modest that power may be) and that you are are of little consequence.
This is the option that Supervisor Tara Gaston chose.
As I posted publicly, on December 30 I suffered a head injury and was limited in work. As such, I did not review your questions after my last response to you. However, prior to this email today I checked in and confirmed that this position was reviewed and approved by the previous County Attorney, employment counsel, and the Department of Labor. All contracts are FOILable, and I have also CC’d the County Attorney and Director of Human Resources on this call in the event that they have any additional information they wish to provide at this time.
Thank you for your engagement with Saratoga County government, Supervisor Tara N. Gaston | she/her
Emailed January 4, 2021
To appreciate Superisor Gaston’s answer it needs to be put in context. In a previous email to her I had asked about the apparent abuse by the county of the use of contracting to hire contact tracers. I had asked her to please find out the extent to which the time of contract tracers was controlled by the county. I have discussed why this is important in a previous post. Rather than answer me at the time, she advised me that the county attorney had told her that it was all legal. I had pointed out to her the extremely problematic role his legal advice had played in the COVID 19 bonus pay debacle. This explains my my most recent email to her spelling out as clearly as I could the answers I was seeking.
Even assuming that the county’s use of contracting for work is legal, Supervisor Gaston does not address the more pressing issues about the current level of staffing and the current effectiveness of the county’s contract tracing.
Supervisor Gaston Assures Her Colleagues At The Board of Supervisors that She Is A Loyal Member of the Team
The most interesting thing about Supervisor Gaston’s response was that she cc’ed both the Director of Human Resources, Margaret McNamara, and the acting county attorney, Hugh Burk. Mr. Burk had been the assistant county attorney prior to the retirement last week of county attorney Stephen Dorsey.
The readers of this blog may remember Ms. McNamara as one of the key architects of the county’s disastrous COVID bonus scandal. Mr. Burk was Dorsey’s assistance during this episode. The county attorney’s office did not fair well in the report by the independent investigation of that sorry business.
Supervisor Gaston’s suggestion that either Ms. McNamara or Mr. Burk might offer insight in the tracer issue has as much credibility as me getting a place on next year’s New York Knicks line up. Needless to say, to date I have heard nothing from McNamara or Burk.
Comrades, I Am One of You
Supervisor Veitch as both a Republican and as a long time veteran with the county enjoys the trust of his colleagues.
In contrast, Supervisor Gaston carries quite a bit of baggage. Foremost, she is a Democrat in an institution that is thoroughly dominated by the Republican Party. She is also a woman. Finally, she represents Saratoga Springs. Our city has always had an uneasy relationship with the county.
I have observed Supervisor Gaston over the last years maneuvering to build up trust and creds with her colleagues. This is to be expected. As with any institution to have an impact one needs the trust and respect of your colleagues. The problem is that our county is so badly managed that the pursuit of trust can come at a great cost.
Unfortunately, this appears to be a cost that Supervisor Gaston is willing to pay. The reality is that the real purpose of copying McNamara and Burk was to send a message to her colleagues that she is a loyal part of the team. She is communicating to them that they do not have to worry that she will be indiscreet and ask questions that might embarrass the county.
Don’t Expect Your Supervisor To Stand Up Against Their Colleagues Over Contact Tracing
It requires a special person to speak truth’s that your colleagues do not want to hear. While there is an insurgency against the current county leadership this may have as much to do with issues of power as to actual differences on policy. Both Supervisors Gaston and Veitch are part of this “reform” effort. One has to ask, what difference a change in leadership will make if an issue as urgent as effective contact tracing is swept under the proverbial rug?
My Email To Veitch and Gaston
To: Tara Gaston and Matthew Veitch
Date: January 4, 2021
The record so far for the county’s contact tracing program has been abysmal. Much of the problem seems to be associated with the failure to effectively staff the project. This is no arcane, technical issue. The rate of COVID infection has radically increased and the recent holidays will only escalate the problem. The recent discovery of the presence of an even more virulent strain in Saratoga County adds urgency to the need to do whatever possible to contain the spread of this virus. Sadly, the failure to effectively deploy enough tracers does not appear to be an issue for the Board of Supervisors.
It appears that the county is contracting for tracers rather than hiring them as temporary employees. The burden of paying their own minimum benefits (social security, Medicare) reduces the net income for the jobs. The burden of dealing with tax withholding and other administrative requirements as independent contractors appears to be a likely deterrent for seeking positions. With that in mind, I am asking you to assist me and the readers of my blog with answers to the following questions:
How many full and part time tracers does the county currently employ?
Does the county have some metric for determining the success of its effort to do contact tracing? If so, what is that metric and to what extent is the county meeting its goals?
Does the county provide any training for its contact tracers beyond taking the Johns Hopkins course?
Are the tracers required to do their work at a county facility?
Do the contact tracers use county equipment such as computers, software, telephones? If so, what county equipment do they use?
Does the county maintain some method of measuring the productivity of the tracers?
Are the tracers paid for items beyond the contract such as reimbursement for mileage? If so, what is paid for?
Can you provide me with a copy of the contract the county uses with these tracers?
Why does the county require applicants to be tracers to submit their application by mail rather than by portal, email, or fax?
Why doesn’t the county provide a telephone number for applicants in case they have questions?
Given the urgency of the situation I am hoping that you share my concerns and that you will assist me in quickly securing answers to these questions.
[JK: This post has been edited to correct an error. I reported that four people were infected by the new strain of the COVID virus. Only one person tested positive for this new strain and that person is recovering.]
Area and national newspapers and TV stations are reporting that an employee of N. Fox Jewelers on Broadway in Saratoga Springs is the first person in New York to show a positive test result for the new, more virulent form of the Covid virus. Three more employees of the jeweler tested positive for the virus but there is no record that these employees were infected by the new strain.
The Times Union report quoted Governor Andrew Cuomo regarding the development that “It’s about contact tracing. This U.K. strain is reported to be 70 percent more contagious.”
Public Safety Commissioner Robin Dalton is quoted in the article as saying “We are at the mercy of the county. We work well with them. We are following all of the New York state regulations. We are following the governor very closely and making sure we are following every safety protocol.”
Unfortunately, the TU also reported that “On Monday afternoon, Saratoga County officials had not said what their plans are, if any, to contain the new strain of the virus.”
According to the Times Union, “The county also has the region’s second-highest positivity rate at 11 percent.”
Saratoga County appears to be violating state and federal laws in its COVID contact tracing program as they are contracting with workers rather than hiring them as county employees. Due to the overlapping of jurisdictions, I have submitted formal complaints to the New York State Department of Labor, the Joint Task Force on Worker Exploitation and Employee Misclassification (JTFWEEM), the New York State Public Employee Relations Board, and the United States Internal Revenue Service. The JTFWEEM was established to better coordinate the overlapping nature of the violations.
It is illegal to “contract” with an individual rather than hire them as an employee to do work if the purpose is to circumvent payment of benefits (social security, Medicare, etc.) and/or to deny the individual the protections of the minimum wage and health and safety regulations.
At the end of this post, I lay out the criteria for categorizing workers as employees vs contract workers.
One of the challenges of pursuing this issue is the opaque nature of Saratoga County’s government. I believe that the case against the county is strong based on the available information on the county website but my efforts to further investigate this have been frustrated by my limited rights as a citizen to information.
The Freedom of Information Law (FOIL) is a very slow process. In effect, the county can legally put off providing FOIL requested information for roughly a month.
Getting a response from employees at the county is limited because outside of FOIL, they do not have to respond.
I have tried to get information through Supervisor Tara Gaston but this has proved to be challenging. Granted, it is the holiday season, but so far the result of multiple emails to her has been her eventually advising me that the Saratoga County Attorney assured her that the county’s use of contracting is completely legal. She writes that she will look into the matter further.
The readers of this blog will recall that this is the same County Attorney who claimed that the COVID committee was not subject to the Open Meetings Law. This, in spite of the fact that I had written to him regarding the New York State Open Meetings Commission determination that the COVID Committee was subject to the law. Eventually, the law firm that investigated the county’s COVID bonus debacle confirmed the violation.
I had asked Supervisor Gaston in my emails to help me answer a simple question (discussed later) which was important in determining the county’s violation. For whatever reason she apparently did not inquire about this with the County Attorney when she spoke to him, and her email to me simply ignored my question.
How The Use Of Contracting Has Exacerbated The Problem Of Hiring Tracers
The county has been subject to embarrassing coverage by area television and newspapers about their failure to provide sufficient contact tracing. Anecdotally, as recently as this week I am aware of a number of people who have contracted COVID or were in contact with someone who contracted the disease and have heard nothing from any tracer even though the county was aware of these cases.
In May the county authorized the hiring of fifty tracers. According to the Daily Gazette, as of December the county had only been able to hire the equivalency of ten tracers since some were part time.
I reviewed the minutes of both the Health Committee and the Human Resources and Insurance Committee of the Board of Supervisors for December, and there is nothing in the minutes about the fact that hiring of tracers has been an utter failure.
Tara Gaston is a member of the HR subcommittee and was present at the December meeting but apparently did not raise any concerns about this situation nor did any other members of the committee.
Putting aside legal and ethical issues, the county’s use of contracting has to be a major obstacle for getting people to apply to be contact tracers.
The county solicitation for contact tracers says they will be paid $25.00 per hour but this is misleading. Those contracted with will have to pay what would normally be the employer’s share for Social Security and Medicare in addition to the employee share (normally deducted from their check). This represents a reduction in pay of at least 7.5%. This does not include other potential items like unemployment insurance. What is probably even more of a problem is that these tracers will have to deal with how much to withhold for both state and federal taxes along with needing to find out how to report these to the respective government bodies. They will probably have to hire an accountant to assist them.
As a further indication of how indifferent the county appears to be to the need to hire people, applicants are told that they must submit their application by mail. So much for modern technology. The county’s website does not provide a contact number for any questions the applicant might have.
Understanding The Legal Limits of “Contracting”
The Internal Revenue Service and the New York State Department of Labor use a number of criteria to determine whether an employer is properly categorizing someone as a contractor.
Misclassification occurs if an employer treats people as independent contractors when they are employees. Some employers use this tactic to avoid compliance with:
Unemployment insurance (UI)
Minimum wage and overtime laws that protect workers
NYS Department of Labor
Briefly, a contractor is supposed to work independently to complete some task. In general, their hours, their equipment, and their training is supposed to be their own. Think Uber drivers.
The IRS is involved because employers are supposed to handle withholding and to pay taxes such as those associated with social security and Medicare.
To understand the issues in more depth I offer the following from the IRS website. They use three criteria to determine if a worker is appropriately categorized as an employee or a contract worker.
Behavioral:A worker is an employee when the business has the right to direct and control the work performed by the worker, even if that right is not exercised.
Type of instructions given, such as when and where to work, what tools to use or where to purchase supplies and services. Receiving the types of instructions in these examples may indicate a worker is an employee.
Degree of instruction, more detailed instructions may indicate that the worker is an employee. Less detailed instructions reflects less control, indicating that the worker is more likely an independent contractor.
Evaluation systems to measure the details of how the work is done points to an employee. Evaluation systems measuring just the end result point to either an independent contractor or an employee.
Training a worker on how to do the job — or periodic or on-going training about procedures and methods — is strong evidence that the worker is an employee. Independent contractors ordinarily use their own methods.
Financial Control: Does the business have a right to direct or control the financial and business aspects of the worker’s job? Consider:
Significant investment in the equipment the worker uses in working for someone else.
Unreimbursed expenses, independent contractors are more likely to incur unreimbursed expenses than employees.
Opportunity for profit or loss is often an indicator of an independent contractor.
Services available to the market. Independent contractors are generally free to seek out business opportunities.
Method of payment. An employee is generally guaranteed a regular wage amount for an hourly, weekly, or other period of time even when supplemented by a commission. However, independent contractors are most often paid for the job by a flat fee.
Relationship: The type of relationship depends upon how the worker and business perceive their interaction with one another. This includes:
Written contracts which describe the relationship the parties intend to create. Although a contract stating the worker is an employee or an independent contractor is not sufficient to determine the worker’s status.
Benefits. Businesses providing employee-type benefits, such as insurance, a pension plan, vacation pay or sick pay have employees. Businesses generally do not grant these benefits to independent contractors.
The permanency of the relationship is important. An expectation that the relationship will continue indefinitely, rather than for a specific project or period, is generally seen as evidence that the intent was to create an employer-employee relationship.
Services provided which are a key activity of the business. The extent to which services performed by the worker are seen as a key aspect of the regular business of the company.
Appealing To Supervisor Gaston
Why am I pressing Supervisor Tara Gaston on this issue? Supervisor Gaston is both a Democrat and a self described progressive. If anyone would share concerns about these issues I would expect it would be she.
In my original email I had asked her whether the county was reserving the right to determine what hours the contact workers would be working since this would be one of the factors used to determine whether a worker was properly classified. I am still hoping that she will get an answer.
I still hope that she will find her voice and help drive reform at the county regarding contact tracing in general and pursuing the question of illegal contracting of tracers in particular.
Here is my last email to Supervisor Gaston.
I was disappointed by your response of December 29, 2020. As you may recall, I specifically asked you whether the contact tracers’ hours were subject to control by the county. The answer to this is important in helping to determine if the contact tracers are appropriately classified as contract workers. Informing me that the County Attorney has advised you that all requirements have been met is not reassuring given that this is the same County Attorney who assured the Board of Supervisors that the meetings of the special COVID group were not covered by the Open Meetings Law when it was subsequently confirmed that they were.
The posting of the positions on the county website strongly implies that the county has the authority to determine their hours. The posting states:
“Weekend and evening hours may be required depending on established schedule and the needs of the County.” The IRS suggests that instructing workers “when and where to work…may indicate that the worker is an employee.”
It is important to resolve this issue for many reasons. The classification of these workers as contract workers may not only be illegal but may also be contributing to the failure of the county to hire enough staff to do effective tracing. Equally important is the fair treatment of those who sign on to do this important work.
I know that you share my sense of social justice and I appreciate the fact that you have responded promptly to my emails. To date, however, your emails have not provided any clarification on these issues. I am looking forward to hearing more from you.