Hello. My name is Mark Silberman. I'm here with my colleague, Chris, and we are very excited to be part of the Behind the Mask podcast series. And we're here today to talk to CRNAs about the difference about being an independent contractor versus being an employee. Let's start with Chris. Do you want to take the opportunity to introduce yourself? Yeah, sure. Thanks, Mark. So my name is Chris DeGrande. I'm an attorney here at Venish Freelander Copeland Narnoff. I work with Mark quite a bit in the CRNA space. My background and work that I do a lot of is more in the transactional and contracting and regulatory space. Less in the litigation, but still dabble sometimes. But a lot of what I do in the CRNA space is helping CRNAs understand the structure of their practices when they're first starting out, understand the contracts that get put before them and kind of what they should be thinking about when they're trying to run a CRNA business or, you know, set out as an employee in the CRNA field. And my name is Mark Silberman. I had the privilege of, I've been working with the AANA in the profession for, God, it's over 12 years now. I spent 10 of those years as the outside general counsel. And for those of you who know me, you know, we're, I tend to be the guy who, when we have a problem, when we have an issue, when the government's angry at you or you're angry at it, Chris is much more the positive life affirming, you know, looking forward with your business. And we're here and excited to go through these issues with you. As with all things, this is just a general overview to give you an idea of some of the big issues for you to be thinking about. If ever you have questions, please don't ever hesitate to reach out to us, reach out to a lawyer you know and you trust. Don't ever over-rely on this type of a presentation as a full legal analysis. We just want to give you the tools so that you can be an advocate for yourself. With that, let's get going. So this is my starting point. That employment matters are governed, there's no one set of laws. You have federal rules regarding employment, you have state, and there's sometimes even local rules that affect this. And when I say that every answer is intensely fact sensitive, you know, when I used to do presentations at state association meetings, I would always call this the brother-in-law rule. We all, everyone has that brother-in-law who knows the answer to everything. And when you say I'm dealing with this employment situation, they're like, oh, I know exactly what it is you need to do. And they may be right, or they may be accurately describing what happened in another circumstance. But at the end of the day, there is a reason that there's an entire body of lawyers, that this is what they do day in, day out, every single day. Because a single fact, a single detail can fundamentally change what the result is going to be or what the results you want. So again, we're going to give you a good high level understanding of stuff you need to know. But make sure if it's important to you, make sure that you're going to take the time to identify a lawyer that you trust and somebody that you feel comfortable helping you guide them on the way. This is an offer I've put out there for, you know, over a decade now. If you're ever having that trouble, never hesitate to reach out to us. When we're not the right person, we'll help you find the right person. We can reach out. We're just happy to do that. We like to protect and advocate for the CRNA community. So do you want to start with concept-wise, what's an employee? Yeah, sure. So employees is, to be considered an employee, generally speaking, again, as Mark said, this does vary by state law, by federal law. And, you know, as Mark mentioned, may even be local laws that determine these things. But generally speaking, a good way to think of this is anyone who performs for you is your employee. If you can exercise control of what will be done, and you exercise a lot of control of how it will be done, where and when it will be done, even if the employee obviously has some freedom to do their job, the ability to control things, you know, things that come to mind are specifically setting out exact hours, exact job duties, and how those duties are to be performed. So let me ask a question about that. For a CRNA, you know, most CRNAs don't just go out and anesthetize individuals randomly. It's usually going to be done as part of a surgical procedure. If you're working with a physician who has strong preferences, I'm going to be polite, since we're recording this, and they want to have very specific says as to how you position the patient or this or that or all those things, is that the kind of control we're talking about? Or is it sort of that bigger, like, you know, you know, is this like choice of anesthetic control? Or is this, you know, like, big, like, where you do your job, how you do your job, that sort of stuff? That's a great way to frame the question, because that's a good question. And it's more of less of the control over your, you know, what Mark was talking about, how to exactly lay the patient down. It's more of the control of, if you are an employee, you're more likely to have something where your employer is telling you, you are here on Monday from 8am to 4pm. And then you can go home, you have an hour worth of lunch, you have exactly this many hours that you are expected to work here this week, and every week, and then this many hours that you are entitled to vacation. So setting out the parameters for how this is one example, I'm using hours as a very, very good one that indicates control over an employee is exercising exact control over how you show up to your job. And when you do it is a good indicator. Now, I do want to clarify, because you're describing kind of like an unpleasant degree of control. I'm hoping that your experience with that has been less bad with me as an employer. Oh, we're recording. By the way, if you do have an employee who's willing to give you a hard time on a recording, you know you're doing okay. All right. An independent contractor is a different concept. And candidly, what it is, is it's created to be an exception from being an employee. There are hyper technical explanations, we're going to give you some things, we're not going to just read slides, we'll have them up so that you can see them. The difference between an independent contractor and an employee is often going to turn on this question of control, right? And the question that the IRS asks, does the employer define what's being done, how it's being accomplished, and Chris used the idea of hours. But, you know, I'll throw this question out. If I'm performing or administering anesthesia at five different facilities, and one facility says we're open Tuesdays and Fridays, and those are the days you need there, and we're going to perform surgeries from, you know, 10 to four. Does that make you automatically an employee? Like, is it a black and white? Is it a balancing? How do we do this? And see, another great example, because the answer there is no, it doesn't exactly. And so I'm thinking back to what Mark said on that first slide about the brother-in-law. What my acquaintances and friends always say when they ask me about legal questions is the lawyer answer is always, it depends. By the way, I guarantee you there are going to be people who are going to watch this podcast who have heard me say that more than once. And I know that that can be a little frustrating, but unfortunately or unfortunately, it allows you to have some wiggle room in the law, but also, you know, makes things a case-by-case basis. So what Mark was saying there, yeah, if, you know, there is a center that is only open certain days, them saying that, hey, we're enlisting you to provide services on Tuesdays and Thursdays, doesn't necessarily mean that they're in total control of your work and make you an employee. You can be signed up as an independent contractor to provide services on Tuesdays and Thursdays. And you ultimately have the ability to control, listen, I'm not going to come on these weeks or I'm going to come. So, okay, so let me just go through and hit some of the factors. And again, no one controls, but these are all the types of things that the government is going to look at, and we'll get into why it is this is a governmental question, right? But do you provide your own equipment, your own materials, your tools, right? Can you be dismissed at any given time, or can you choose not to come in without, like, you're going to get fired for this? What you were talking about, time, place, hours, how are you being compensated? And that's going to be a big thing. You know how there's a way to have, like, what screen is coming next for a PowerPoint? I'm not smart enough to have done that. So we're going to talk about that later. There will be situations where, you know, I may start talking about something that we're going to cover three slides later. I hope you'll all bear with me. Things that suggest, so, and again, the more control, the more likely you are going to be considered an employee, the more someone else is controlling it for you. These are the things that would suggest that you're an independent contractor, right? If you do the work for, like, multiple people, why is that? I mean, let me ask you, and this is a loaded question, how many different law firms are you currently working for? One. And so doing work for multiple different people, again, is a factor that lean towards independent contractor, because typically when you are working as an employee, especially if you're a full-time employee for an employer, the expectation is, you know, it's in the name of what you are, a full-time employee. I think there's something in your agreement that says the entirety of your legal efforts will be put forth for the benefit, and that's the idea. Yeah, and, you know, there are things that come along with being an employee, exactly what Mark said, that the expectation of being a full-time employee that will be included likely in an employment agreement that you have is that your full efforts are dedicated to being an employee, and that you will not be doing anything outside of, you know, your work here that would interfere with your ability to be an employee. So, you know, theoretically speaking, sure, you could be an employee as a CRNA and then still have another job that you work, you know, as a, like a host at like a restaurant or something. And one of the interesting things we can talk about, because this is true of the CRNA community, is there are people who still, they used to call it moonlighting, right, but that will do additional work outside, and as long as it's approved, but we'll talk about that, because this is going to be the subject of a different presentation, but if you're doing that, we're going to want you to stop and make sure that you have the appropriate corporate structuring around yourself, yeah, to make sure. So you, let me ask, can you both be one person's employee and be an independent contractor doing work for someone else and another? You absolutely can. Okay. And the idea would be, again, a big, you know, we're lawyers, so we always say, make sure that what you're doing is above board as much as it can be. So, I mean, my advice to anybody doing that is always, it's okay to do it. You should always consult, especially if you have an employment agreement with your employer, and be upfront with them about what you're doing, because the thing that can be in an employment agreement is to make sure that one, you are not, a lot of agreements are going to say they do not care if you do other things outside of work. Obviously, you have to do something outside of work, as long as it's not interfering with your physical ability to perform your job. Yeah. So if you are, you know, like I said, if you have another job that, whether it's moonlighting or whether it's acting as a host at a restaurant after work, fine, as long as it doesn't mean you don't show up for your scheduled employee hours that you're supposed to be working as an employee. And again, you know, as an employee, we'll talk about this in later podcasts and in later discussions, you may actually be restricted by competition covenants or just firms in your contract that say you can't do certain things. I'm going to let you in on an important secret. Employment contracts as a general rule are designed to protect the employer more often than not, but we'll get into that in another podcast. The one thing I want to just highlight now, because we're going to talk about it later, is the idea of being ineligible for employer provided benefits. That's something that candidly gets used and very candidly abused at times that I want everyone to think about because that's an important part of protecting yourself. Okay. The more integral you are to the work, to the business, the more likely you are going to be considered an employee. Again, that doesn't change the business structure issues because let's be very candid. Most people consider anesthetic integral to any surgical procedures. I don't want to be a lick, but at the same time, it's not that degree of integral. These are just the types of things. And if it's a balancing factor and a balancing test, ultimately there's going to be a preference to try to have you determined to be an employee. This candidly, these next few slides, I'm going to go through quickly. I want you to have them so you can see them, but this would be the kind of podcast you would hate if we were just going to stop and read all of these. But the IRS test, it's three tests, behavioral control, financial control, and the type of relationship, and we'll explain why it's going to lead towards being an employee. But these are the types of things that the IRS, this is actually part of their analysis they're going to perform to evaluate, is there behavioral control, right? Training to do it in a particular manner, right? You know, how much independence you have and how you do these things, supplies, this, that, the other tools, all of that. The idea of financial control. These are the, this is where things like benefits, this is where who's paying for your expenses, all of these things factor in. And lastly, is the question of, says the guy who hit the thing, the type of relationship, is this something that's permanent? Is this something ongoing? Is this your only source of income? All of these different things. You can read through these if you have questions, but this is the type of thing you should be thinking about. Ultimately, I want to say this, no one becomes an independent contractor by mistake, right? Because you're going to have to enter into an agreement. You're going to have to have some degree, or at least you really, really, really should. And very candidly, again, separate podcasts, but you're going to want to make sure you have the appropriate structures around you to protect you. Independent contractors generally get that degree of control. They're their own bosses. They're the hired gun. They're the ones that you are doing it. Do you want to give it to, like it says, it's often defined by an oral or written contract. Just 20 seconds, why is it important to have a contract? So I think the way that you and I always discuss it is that, especially again, lawyers, I always love a written contract as opposed to an oral. Oral contract would just be, you know, you talk something through, you have a verbal agreement. Handshake deal. Handshake deal. A lot of the world is run by handshake deals. Understand they're out there. A written agreement, and this is where you and I always say, not a lot of people look back at their written agreement all the time on a daily basis to see, what does my contract say I should be doing at work today? It's more of when something goes south is when you tend to look back at your written agreement. So having things in a written agreement, it really gives you a basis for where to go, what to look at, and kind of what you should fall back on if you ever start to have issues with an employer or if you're an independent contractor. See now, since I'm known for brevity, what I would have said, if they know better, is look, you want to know why you want it in writing? People suck. People suck. And it is amazing how convenient their memories get when there's a dispute. So that's why you want to try to put things in writing. That's, by the way, true as an employee as an independent contractor. The benefit generally of being an employee is you get that stability. You give up certain controls, but you have that stability of income. You have a salary. You have the constants. If the surgery center doesn't have work that day, you're still getting paid, like all of these different things. The one wild card I want to throw out is an employee at will. You need to know if you're an employee at will state. Now, basic description. Employee at will state is basically, yes, you are considered like a W-2 employee who isn't employed by your employer. You're not an independent contractor. But for lack of a better term or a better way to put it simplistically, you can be terminated at any time for any reason as long as it's not as long as it's not illegal. Right. For example, no contract. You're just we hire you. Even if there's an email that says this is your salary. Right. Even literally, I don't like that jacket. You're dressed nicely. You're making me look bad today. You're fired. No. Right. I actually do, too. But the idea is, look, it's a stupid reason you can be fired for dumb reasons. You just can't be fired. Like I try to fire Mark just had his second child and his wife. And you're ready if I fired you for your being a parent and like I'm in trouble now. Yeah. Right. If I was to try to have the power to and try to fire Mark because I think he's a. But by the way, we've gotten to the point that I kind of am. All right. So why does all this matter? Why are we even having this discussion is at the end of the day? It's about money. I hate to say it. I hate to be that guy. But it impacts taxes. It impacts benefit. The only reason people care, employers care because it affects their money, employees or independent contractors. It affects their money and the government cares because it affects theirs. So from the employer perspective, what do you avoid if I if you're an independent contractor and not an employee from the employer perspective, there's less that you have to offer in the way of employee benefits. You also don't have to incur a lot of payroll taxes, Social Security, like the withholdings, workers compensation. Truth. There is no set like vacation amount of PTO that you need to account for. So there are quite a few employers, especially I mean, the one that I run into a lot is the not having to provide benefits. It's just it's a headache to administer. It's a lot of money. So there are health care benefits. Yeah. Benefits make health care, dental vision, you know, term life, any of those type of things that you may think of as pretty common at an employer. If you're an independent contractor, they're not going to be getting that for me. The thing that blew my mind was the idea that it meaningfully impacts your Social Security. Yes, because no one's paying in Social Security on your behalf. So there are now these are things that, by the way, if you notice at the bottom for an independent contractor, these are things you're giving up, benefits you're giving up. And it's important to realize that because. Ultimately, you're going to want to make the decision that's best for you. There are pros, there are cons. And as long as you're aware of it and as long as you can plan for it, both have their benefits. Right. Ultimately, what you're going to want to do is you want to decide what you want to be. Liability is a big issue. We just want to hit on this. When you are an employee. Look, I'll use Chris as the example. Chris is a very, very good lawyer. You call me old. I'll call you young. Yeah, that's fine. Right. That's a great job. But if you make a mistake that rises to a level that constitutes malpractice, you're protected by the firm's insurance policy to protect against that. Right. If you're out on your own. You better have insurance to do that. And if you don't. Right. Yeah. Then. And we all know there's no hyper aggressiveness with regards to actions baseless or not against health care professionals. And CRNAs literally are the best example of something goes wrong with a surgical procedure that has a grand total of nothing to do with the delivery of anesthesia. But they were in the room so they get included because lawyers, you know, good lawyers use the it depends. Bad lawyers use the sue everyone and let someone else figure out the wall and see what sticks. Yeah. And, you know, so you're going to have to cover your own liability. You're going to have to insure for it. You're going to have to protect yourself. And there are some states where you have absolute requirements and bare minimums. There's others where, you know, you're going to have to. And by the way, I will just say A&A Insurance Services is a great resource for educating yourself on this. They have programs they put on. But the profession as a whole has meaningfully moved the needle from when there was no available insurance products for CRNAs to making sure that the marketplace is, you know, littered with them in the best way possible. And what I would say on this subject of liability insurance is when I have encountered a lot of folks who are moving into the, you know, the realm of they want to become an independent contractor, be a little more on their own, really understanding the insurance requirements and what the insurance means is really important. So what Mark's saying, these resources that you have, definitely use them because, you know, the bullets that we have here are just like some ideas of questions and issues that I see all the time, which is one, yeah, you're going to have to provide it for yourself, but what kind of insurance do you want? Yeah. Claims made versus occurrence basis insurance. I mean, it makes a big difference in cost of your insurance and what, you know, how you can be protected by it. The idea of that basically, by the way, is the claims made policy covers claims at the time they happen and occurrence is just like, it's like a blanket coverage. So if you were ever to leave the year that it happened versus when someone makes the claim. Yep, exactly. And yeah, this is all stuff's great, great materials. There are great materials. And like Mark said, what type of level of coverage you need is going to vary by state. So, I mean, just understanding all those, I know that I get lots of questions about it and it's a nuanced question. And let's be honest. Anytime a lawyer says go to a professional, not me, who knows this, you should listen to that. Yep. Okay. We're going to talk just a bit. We could do an entire presentation. In fact, I have done entire presentations on restrictive covenants. These are non-competes, non-solicited confidentiality. Every state has its own rules. You need to know, are they enforceable? If so, what I will tell you, the biggest mistake that I have seen CRNAs make throughout my years of doing this is they generally believe, well, I've heard those aren't enforceable and they agree to them. And that's not always the case. And so, as I always say, if it's important to you, you're going to want to make sure it's in writing. If you have no intentions of doing it, and maybe don't agree to it, friendly piece of advice, because then you end up meeting people like us more often than you want to. And I assure you, the less in life you have to deal with lawyers generally, the better you do. At least ones like me. Positive life affirming, setting up businesses, all that. We love Chris. Okay. My conclusion. When I say be intentional about what you want, that's what I was talking about earlier, that this doesn't happen by mistake. If I asked you, do I want to be an independent contractor or do I want to be an employee? What's your immediate answer going to be? It depends. You did that. We didn't even practice that. It really does. There's so many pros, there's so many cons. And one of the presentations that we're going to give on business organizations and things like that ties into that, right? Picking the right organization to protect you, to protect your assets. It's going to tie into, you need a good CPA, you need to have a good accountant, you need to have a good insurance. There's all this stuff that goes into it. It does take a lot of work, but it's time, energy, and effort that's well spent. And if you are entrepreneurial, you want to have your own business, you want to be able to control your own destiny, then being an independent contractor is a great idea. It also, by the way, is the kind of thing you can do at different points in your career. A lot of people want to start their career as an employee, get learning, training, this, that, the other. They become an independent contractor. They make their fortunes. Maybe they don't, whatever the case may be. And then at the end of their career, they want more stability and just to do the job. The great thing is, is once you learn it, once you get an idea of what you're doing, once you identify those resources that you can trust, then you're in a great position, not only to protect yourself, but to help guide others. And one of the great things about this profession is its commitment to taking care of each other. Explain when I say that employers have been known to miscategorize. Why? Why would I force someone to be an independent contractor instead of being a rightful employee? So this goes back to one of our prior slides. If a employer or a company thinks that you're an independent contractor and makes that argument, there are costs that they may not have to incur. Oh, sorry. I should have started out with money. The answer would be money. That's the simple answer. But there may be costs that they don't have to incur if you're an independent contractor that they would if you are an employee, which is again, benefits all of the withholdings they need to do for social security employment taxes that they have to pay. But no offense, but employer takes advantage of the person working for them. That's shocking. How and why is anyone going to care? There's two answers. The two people who are most likely to identify this one is going to be the government. Why? And why does the government care? Because you're undermining the taxes that they're collecting. You're undermining the money that they have. Money motivating again. The other would be plaintiff's lawyers. Now, for the record, are you a plaintiff's lawyer? Am I a plaintiff's lawyer? Oh, come on. Don't pause. Oh, I thought you were answering your own question. No. The idea is plaintiff's lawyers will bring these cases. Very candidly, there was a change made a while ago that now these cases come with attorney's fees provisions that people are improperly classified. And so it has encouraged lawyers to bring these actions for the sole purposes of making money money. End of the day. Decide what you want to be and be it. Know how to set it up, know how to structure it, know how to protect yourself. We'll talk about maintaining the appropriate formalities in another presentation. We encourage you to watch that. We want to thank you. If you have questions, don't hesitate. Reach out. We're not a taxi cab. You don't the bills don't start coming the minute you sit in the back of the car. If we're not the right people to answer your question, we'll get you in touch with the right people. Lawyers love disclaimers. So I do have to do the final. Don't rely on this or anything is complete legal advice that the other. But we want to thank again behind the mask for the opportunity to share this information with you. We wish you well in your journey. And thank you, Chris, for joining me. Thank you. All right. Everybody have a great day.

entrepreneurial CRNAs

protect themselves

corporate structure

liabilities

regulatory compliance

False Claims Act

patient care

CRNAs

independent contractor

employee

control

liability

benefits