Independent Contractor V. Employee Guidance yet Again

by John Heveron

The US Department of Labor has proposed changing how workers get classified as employees or independent contractors again. 

Changes under the Trump administration made it easier for businesses and nonprofits to classify workers as independent contractors by focusing on just 2 key factors.  The DOL is proposing that several factors be analyzed to determine whether the worker is economically dependent upon the employer for work rather than being in business for themselves. 

Individual factors would not be given special weight, they would be considered as a whole.  Factors would include:

* the nature and degree of the workers control over their work,

* the relative investment of the worker and of the employer,

* the workers opportunity for profit or loss,

* the permanence of the working relationship between the worker and the employer,

* the degree of skill necessary to perform the work, and

* the extent to which a worker’s duties are an integral part of the employer’s business.

Passing along — fellowship for self-advocacy for individuals

Blue banner with white text: ACL Announcement Self Advocacy Resource and Technical Assistance Center Fellowships Now Open for 2023 Projects
Application Deadline: Monday, January 9, 2023 | 9 PM ET   Apply for the fellowship   The Self Advocacy Resource and Technical Assistance Center (SARTAC) is now accepting applications for fellows for a one-year self advocacy project.

SARTAC will select six fellows, who will grow their leadership skills as they work on their projects with host organizations. Fellows will work on their projects about 14 hours per month and will receive $5,000 to complete their one-year project. The fellowship begins on March 1, 2023 and ends February 28, 2024.

SARTAC will choose fellows and contact all applicants by February 14, 2023.

To learn more about the application process, SARTAC will hold a Zoom meeting on Thursday, December 1st, at 1 PM ET. Meeting information is below: Meeting ID: 324 815 633 Call-in number: 1-929-436-2866 Learn more about the fellowship and find past and present projects and examples of final products on the SARTAC website.

For more information, please contact Candace Cunningham or call 816-235-5833. SARTAC was created to share self advocacy ideas and help others across the country. It operates with support from ACL. The mission of SARTAC is to strengthen the self advocacy movement by supporting self advocacy organizations to grow in diversity and leadership. Facebook Twitter YouTube  ACL.gov  
Advancing independence, integration, and inclusion throughout life   Please do not respond to this e-mail. Contact the Administration for Community Living.
    Forward Forward

Recent tax legislation by John Heveron

In addition to the student loan forgiveness enacted by President Biden, and estimated to be worth between $390- $500 billion by The Tax Foundation, Congress recently passed, and the president signed, the Inflation Reduction Act. Student loan forgiveness for nonprofit employees expires on October 31, 2022.  This is not the same as the recently enacted student loan forgiveness program.  Some of the limitations in that new forgive this program to not apply to nonprofit employees.

Employees can go to https://studentaid.gov/PSLF to check their eligibility for forgiveness.

The National Council of Nonprofits put together a concise outline of how this legislation impacts nonprofit organizations. Highlights are below.

The new law provides enhanced and extended tax breaks for energy efficient construction in the form of tax credits.  Nonprofit organizations can transfer these credits to contractors and reduce the contract cost for these energy efficient systems.

Healthcare premium tax credits under the Affordable Care Act are extended for three years. Credits are increased for participants who are between 100% and 400% of the federal poverty level.

Visit the National Council of Nonprofits website for a summary of the inflation reduction act.

Penalty Relief for Late Filed Tax Returns

IRS recently issued Notice 2022-36 which provides penalty relief for 2019 and 2020 tax returns that were filed late. This penalty relief means that unpaid penalties will be forgiven and penalties that have been paid will be automatically refunded-no application is required. Delinquent returns must be filed on or before September 30, 2022 to qualify for this penalty forgiveness. Penalty relief will be for the following returns:

  • Form 1040 personal income tax returns,
  • Form 1041 trust and estate income tax returns,
  • Form 1120 corporation income tax returns,
  • Informational return such as form 1099,
  • Form 990-PF-private foundation annual filing, and
  • Form 990-T-unrelated business income tax return

Forms 990 and 990-EZ are not listed in this notice, but they are still eligible for the normal abatement request process.

More details can be found in Internal Revenue Service Notice 2022-36.

Disclosure of disability for board and staff…

Question: A board member has asked about knowing who/how many on the board have a disability.  The want to poll the board members and find out. I have always been told that it is “optional” to disclose this information.  I have often wondered how we know we are 51% compliant (many people in he world have “hidden” disabilities) but again, I was told from the beginning that one applying for the board or to be an employee did not have to  disclose.  We let all know we are to be 51%  disabled in our applications but are not supposed to come out and “ask”. Can you clarify for me please?

Reply: This is not a simple policy matter but a deeply philosophical matter as well.

Literally the center must be able to show that 51% of board members have a significant disability. Note the term “significant”. It can’t be “you wear glasses so you count”. But while having that question on the application and counting up the yeses technically meets the requirement it misses the point.Fifty-one percent of staff must state that they have a disability.

And I can’t tell you how it saddens me when centers have a non-disclosure piece in their policies. Note this is an individual decision. Nothing in federal law mentions that the disability doesn’t have to be disclosed or must be disclosed to the public, either way.

The point is that people who are loud and proud to be part of the disability community are the ones who started and run centers. When you have a lot of invisible disability (sometimes because someone doesn’t want to say) among staff and board, the impact of consumer control can be and too often has been lost.

I know that some folks are not ready to publicly disclose, for example, a mental health disability, and may ask you not to publish their disability because of the impact on their work or business life. They have that right-but the fact that they have that fear means we have much work to do in order to have full inclusion in our world.

Does that answer your board question?

The staff question is more complicated but the law allows you to ask if they will disclose when hired so you can take affirmative action. After hire I truly hope they will speak up and represent their disability to the community.

Leases Get Capitalized for 2022

By John Heveron

Leases must be capitalized in your financial statements for calendar year 2022 and fiscal years ending after December 31, 2022.  This will apply to in place leases, although month-to-month leases and leases with a term of less than one year will not be required to be capitalized.

When this is done, your balance sheet will show a new, potentially very large, asset representing the right to use the leased property.  It will also show a new liability, which is the obligation to pay under the lease agreement.

This won’t increase or decrease your equity or your surplus/deficit.  However it may affect your current ratio.  You should check whether this will have an impact on any loan covenants.

Large CPA firms have  quite a bit of helpful guidance regarding lease capitalization procedures. Check out https://www.investopedia.com/terms/c/capitalleasemethod.asp

Be respectful of disability – wear your mask and don’t look down on those who do.

I recently attended a national conference of professionals in the field of Independent Living. I showed up in my mask and wore it most of the time, but I still felt the unspoken peer pressure of, hey, most are NOT wearing masks, and I don’t want to be the dork. So I was ambivalent, sometimes putting it on, most of the time not after that. Maybe it didn’t really matter.

I came home and read this powerful post from Disability Visibility and I am reposting it here. It made me change my mind. I WILL be masking at future national conferences, out of respect for my peers whose immune systems need my support.

Why I Won’t Be Organizing Any In-Person Fundraising Events For the Foreseeable Future

Ingrid Tischer

Informational graphic from the CDC. The text message is “Avoid crowds and poorly ventilated spaces.” The stylized image is of a woman wearing a mask and walking two dogs outside on leashes. She is alone with the dogs.
Informational graphic from the CDC. The text message is “Avoid crowds and poorly ventilated spaces.” The stylized image is of a woman wearing a mask and walking two dogs outside on leashes. She is alone with the dogs.

Reasons, I’ve got a few. But this still-current guidance from the CDC for high-risk people is the one that matters for any organization claiming inclusion as a core value.

Because May is Mental Health Awareness Month and what better time could there be for me, a high-risk Development Director at a nonprofit, to deal with my depression flare’s connection to fundraising-event season, both of which are now in full swing, just like the newest Covid surge. Why, you ask?

Because I don’t want to organize a fundraising event I can’t attend.

Because I’m going with scientific reality versus magical thinking about a deadly virus that could make me disappear.

Because my professional judgment based on 30 years in this field is that an in-person event where people have to be on their guard about a highly-contagious, life-threatening disease doesn’t sound festive or like a feasible option that merits extended discussion. 

Because “caveat donator” (let the donor beware) is an irresponsible standard for a non-profit.

Because the choice you make as an individual about going to an in-person gathering is different from an organization’s choice to host an in-person fundraising event during a pandemic that, yes, is still going on. This is not disability justice. This is not solidarity.

Because I’m a crip who wants to go on being part of the resistance and resisting is really hard if I’m no longer existing.

Because you may be just fine if you test positive for Covid after having had your mask off for a few minutes while you noshed at a fundraising event but the high-risk people you inevitably interact with afterwards may not be. The same goes for the attendees’ high-risk loved ones.

Because what you see as a negligible risk for a few outliers is the still-blood-chilling risk for the group of people I’m in, whose deaths and severe illness we don’t even have detailed reporting on. Even with vaccines and treatments available now, that doesn’t mean everyone has access to them. Mind you, there are still people who cannot be vaccinated or are not eligible for existing treatments.

Because, to paraphrase what I said as an HIV/AIDS test counselor in the 90s, we should all be practicing harm reduction and safer eventing.

Because harm reduction + your mental health needs = prioritizing the in-person togetherness that brings you maximum joy with the least risk. I value all of the fundraising events I’ve ever worked on but I’m pretty sure you have more meaningful options for gatherings that get your mental health needs met.

Because a commitment to racial equity includes centering the people who those “outliers” are likely to be, given the rates of disability and chronic illness in BIPOC communities. In addition to poor, older, and/or higher-weight people.

Because choosing to host an in-person fundraising event is encouraging the implicit message that the pandemic is over and things are back to “normal”  whether you intend to or not.

Because fundraising event planners take a sacred oath that starts with: First, do no harm to your attendees.

Because hybrid fundraising events end up creating two tiers where non-high-risk people get to talk and hang out and socialize, and a lesser event where high-risk people are passively watching stuff on-screen that they cannot be part of. 

Because if passively watching stuff on screen is enough for me then it should be enough for everyone else.

Because, yes, I am okay with non-high-risk people losing the sense of relief that everything is going back to normal because their false-positive is going to keep high-risk people in danger that much longer.

Because your relief in going back to “normal” is my grief in being sent back to the margins where attending in-person fundraising events is tiring, stressful, and expensive, and makes me afraid that the ease that was the saving grace of the last 2 years is going to inexorably dwindle away.

Because I’ve accommodated other people’s preference for in-person fundraising events for all of my worklife and had only 2 years of not having to do things like pee-math as part of my job. 

Because it bummed me out to be pitted against people with different types of disabilities who can’t access virtual fundraisers instead of being in solidarity that we can use what we’ve learned to look at such events differently.

Because high-risk people are in every donor population and intentionally planning a fundraising event where people like us can’t be present conflicts with the idea of No Funding About Us Without Us

Because fundraising events are supposed to showcase our values, like equal access and inclusion, not conflict with them by excluding an entire class of people.

Because an in-person fundraising event is not necessary unless your mission and services are inseparable from gathering together outdoors safely, as with non-contact sport programs.

Because if there’s an organizational commitment to a principle like #NoBodyIsDisposable then fundraising cannot undermine that or the organization loses credibility and trust.

Because it matters if high-risk people aren’t at the fundraising event with you. 

Because I’d be a hypocrite the size of a Republican’s ego if I organized or was associated with an in-person fundraiser before the pandemic is under control after taking other organizations to task for their lack of access and inclusion. 

Because I’m a zombie-killer when it comes to the ableist, won’t-die insistence that “real” community-building can only happen face-to-face.

Because holding firm to “better safe than sorry” is what my crip-leadership looks like right now.

Because, in fundraising terms, your promised solidarity with high-risk people isn’t a pledge you can write off.

Because I can’t believe I have to actually explain this but planning a fundraiser that you know isn’t really safe isn’t the good kind of “disaster-planning.”

Because still being alive after the last two years is a privilege and I’m not going to misuse it by creating a potential superspreader hazard for other people, even if they don’t see a danger.

ABOUT

Photo of Ingrid, a middle-aged White woman with a long gray/brown ponytail who is wearing a bright blue dress and a colorful cloth face-mask. She's sitting in her wheelchair outdoors, next to a fuschia orchid. Photo credit: Christopher Egusa
Photo of Ingrid, a middle-aged White woman with a long gray/brown ponytail who is wearing a bright blue dress and a colorful cloth face-mask. She’s sitting in her wheelchair outdoors, next to a fuschia orchid. Photo credit: Christopher Egusa

Ingrid Tischer (white, she/her) has been a Bay Area–based “accidental” fundraiser and non–profit manager for 30 years, going from a women’s free clinic on Haight Street to a national cross-disability rights center. She is currently setting up a coaching-for-liberation practice focused on the emotional landscape of disability, chronic illness, and aging, to better cope with the ableism that pops up to block progress in your life, work, and creative projects. Her practice will also work with allies and organizations on how to grow a culture of access that addresses work-disability balance, disability-related implicit bias, and succession-without-stigma planning. Her blogs are www.talesfromthecrip.org and www.disabledindevelopment.org. This post is found at https://disabilityvisibilityproject.com/2022/05/24/why-i-wont-be-organizing-any-in-person-fundraising-events-for-the-foreseeable-future/

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Have Your Internal Controls Survived Covid? 

by John Heveron

Your staff may have shrunk, and work may be both remote and on-site.  So, how have your internal controls survived these changes?

See how you match up against this list of best practices. Make sure that your policies and practices are addressing these important items.

Brown-skinned young man in a suit and using a wheelchair operates a calculator while the computer screen shows an Invoice.
  1. Be sure that every employee gets a copy of the organization’s up-to-date personnel manual. Most lawsuits come from employees and former employees.
  2. Have a written code of conduct that describes proper ethical practices and be sure that everyone knows that they must abide by that code.
  3. Show no tolerance for improper practices. Even minor violations should be addressed as a serious matter.
  4. Question unusual activities. Don’t be hasty to accuse someone of wrongdoing, but be sure you understand the activity.
  5. Develop a good budget and look at variances from that budget. Update the budget throughout the year as appropriate. When you do this, variances are red flags that deserve your attention.
  6. Someone who is not involved with billing or accounting should initially receive incoming payments and record them on a deposit ticket or in a separate place.
  7. Incoming checks should be stamped “for deposit only” as soon as they are received.
  8. The monthly bank statement (checks, electronic payments, etc.) should be reviewed by someone who does not prepare checks. If you do not get check images, request them or change your banking relationship.
  9. Mark invoices to show that they have been reviewed and paid.
  10. Credit card statements should be received and reviewed by an independent person. There should be proper documentation for all charges.
  11. After checks are prepared, they should be submitted to the check signer with original invoices. Invoices should then be marked paid to prevent reuse.
  12. Someone who is not involved in preparing payroll (entering payroll information or calling it into a service bureau) should review payroll reports to be sure that hours and rates are proper.
  13. Accounting and other important data should be backed up, verified and stored off-site.
  14. Log off or shut down computers at night.
  15. Anti-virus, anti-spam, and Internet firewalls should all be implemented and kept up-to-date.
  16. Surge protectors or battery backups should be in place.
  17. Any laptops or mobile devices with access to your server should be password-protected, and possibly encrypted.
  18. Have someone review error logs and run software updates regularly.
  19. Computer access should be limited with passwords and physical controls.

Changes Coming for QuickBooks

Contributed by John Heveron

Starting with the 2022 version, QuickBooks is being sold by annual subscription only.  They still have a local version as well as QuickBooks Online (which is what QuickBooks prefers to sell).

If you choose to purchase the 2022 local version of QuickBooks, it connects to the Internet and any upgrades are automatic.  Presumably it also checks whether your subscription has expired.

According to a QuickBooks representative, if you buy the 2022 subscription you will also get 2023 for free, but if you wait until 2023, you will only get that one year subscription.

Quicken went to a subscription model a while ago, and when the subscription is up, you no longer have access to the program without an additional subscription.

QuickBooks states that they are doing this to help assure that the program is up-to-date and secure, and so their support team will not be working with versions that they are not familiar with.  They did not say anything about the obvious boost to their revenue that this will mean.

Older local versions through 2021 presumably will continue to operate as in the past.  However, QuickBooks drops a version of the program from its support each year.  2018 is no longer supported, 2019 is next.

System Advocacy or System Change?

Advocacy is defined in our regulations, in 45 CFR 1329.4:

Advocacy means pleading an individual’s cause or speaking or writing in support of an individual. To the extent permitted by State law or the rules of the agency before which an individual is appearing, a non-lawyer may engage in advocacy on behalf of another individual. Advocacy may –

(1) Involve representing an individual –

(i) Before private entities or organizations, government agencies (whether State, local, or Federal), or in a court of law (whether State or Federal); or

(ii) In negotiations or mediation, in formal or informal administrative proceedings before government agencies (whether State, local, or Federal), or in legal proceedings in a court of law; and

(2) Be on behalf of –

(i) A single individual, in which case it is individual advocacy;

(ii) A group or class of individuals, in which case it is systems advocacy; or

(iii) Oneself, in which case it is self advocacy.

Anna Birney defines System Change as “the emergence of a new pattern of organization or system structure. It is an outcome.”

Let me suggest that, every time we engage in advocacy our hope is to see change. System change, then, can be — should be! — the result of our advocacy work.

I’d like to suggest that our advocacy will be most effective if we know what it is that needs to change, how that structure or policy or pattern or environment can be changed and what the new emerging system should look like. Holding signs and shouting slogans or singing songs can certainly draw attention to the system that needs changing, but if we are doing these things in front of the wrong office and are missing the people or groups that can impact the change we want, we have planned poorly and may be wasting energy and resources.

You’ve heard the maxim, “Begin with the end in mind.” That applies to advocacy. It is important for the people impacted by the system that needs to change to define what the replacement or modified system needs to look like to meet their needs. What new pattern or policy or structure or organization needs to change, and what does the new system need to look like?

Donella Meadows suggests these leverage points (interpreted by Anna Birney) to accomplish system change. As you go down the list the greater leverage and therefore impact you might have on changing the system. System change is unlikely to happen in just one of these ways but a combination of them all.

Structures –changes in the physical structures of a system for example the way a transport, energy system or place is organized

Flows — changes in how flows of information, finance or how value might be distributed, are configured and relate to each other

Rules — the rules dictate how the system is organized, so if they change they will have an impact on the flows, patterns and structures of the system

Power to evolve — this is the one I find the hardest to get my head around. The power to add, change, evolve or self-organize system structure. So can we put in place the ability for the system to change, adapting to different responses to maintain the goal of the system? If a system is self-organizing it has the power to keep evolving itself.

Goal — If the goal of the system, it purpose and function, change, it will ultimately determine how the rest of the system operates.

Paradigm — A paradigm is a set of assumptions or a view about how the world works, it is a pattern of organizing our thoughts, which informs how we act and how structures, flows, rules, goals arise.

As you engage in system advocacy, take the time to figure out which approach or combination of approaches get to the crux of the issue. Exactly what do you want to change? You will be a chance to express what you need at some point. Be ready with a thoughtful analysis of what in the targeted system needs to change and how.

What advocacy IS allowed with federal funds?

White board, "Advocacy" in red, with three numnered, blank lines underneath.

Let’s be clear right up front. The core service of individual and systems advocacy is a driving force at the heart of the Independent Living Movement. Advocacy has the power to change lives, communities, states, and nations. Major disability legislation and societal changes would not have occurred without the efforts of strong advocates. While individual advocacy is important, it has a narrow impact. Systems advocacy has a broader scope that influences laws, practices, patterns, and problems that affect many people.

The mission of a CIL is to identify, advocate for, and enact social change related to people with disabilities. Equal access is a key element of Independent Living philosophy, and noted in the first paragraph of Title VII of the Rehabilitation Act. If we want our society to extend equal access, to change for the better, we must speak out about injustice. Advocacy must be a key component of your CIL. Although much has changed in the last few decades, the battle for equal access and/or treatment in housing, education, employment, transportation, healthcare, criminal justice, and other areas continues. Advocacy is needed with local, state, and federal systems when they do not adequately address many of these complex issues.

Advocacy is not only allowed with federal funds. CILs are required to advocate as a core service. SILCs are allowed to advocate if they have included advocacy in their State Plan for Independent Living. ACL’s FAQ defines advocacy as: Advocacy is the act of engaging with government officials to educate and provide technical, factual, and non-partisan information about relevant issues. For example, a grantee could meet with an elected official to provide information about grant activities and educate them about the beneficiaries of those activities. They may also respond to written requests from government officials for testimony. Advocacy is a permissible use of federal funding, and certain ACL grantees, including CILs, are required to engage in advocacy. (See 45 C.F.R § 1329.4 for the regulatory definition of “systems advocacy.”

Notice this language — technical, factual, and non-partisan information about relevant issues. Collecting and communicating important information that makes a difference to people with disabilities is allowed with federal funds — which means staff time and center or SILC resources can be used to collect and disseminate key information. We can initiate factual studies or surveys around issues of concern. We can present that information to lawmakers and others of influence. We can study and present fact-based information on a shortage of personal care workers, for example. We can then interview workers or former workers to learn the “whys” of the shortage. Consumers can describe the impact of these shortages on their lives. We are not lobbying for a salary increase when we are providing this non-partisan information. We are presenting facts. We can do this in open testimony, in email, in face-to-face meetings — on time paid for by federal grants — as long as we don’t cross over into support or advice on the vote we want to see on a specific bill. This strategy can be used to address almost any issue that may later become a bill. How has medicaid expansion impacted other states? Share with your state, which isn’t participating. What are the savings to tax payers when individuals are able to stay independent at home rather than served in long-term care? How have the centers in your state diverted individuals from long term care, allowing them to stay at home in the first place? These are important issues for our people, and the IL network in your state should know the answers to these questions and more. Presenting them to key decision-makers — or assisting consumers in telling their stories — will further the cause of Independent Living and the positive reputation of effective Centers in your state.

Some of these guidelines apply to making comments on proposed rules. If we know the impact — factual and non-partisan impact — then comments fall into the advocacy side of things. It isn’t lobbying until you say, “So vote for or against….” at which point you taint the entire advocacy conversation as lobbying and it is no longer allowed with federal funds.

But at some point, in a new conversation, you may want and need to say exactly how you hope your legislator will vote on a specific matter. At that point you are lobbying. Don’t panic – you can lobby, just not with federal funds. It is up to you to keep track of the actual costs related to lobbying — including your time, the costs of any materials developed/copied/distributed, and the related indirect costs. Assure that these costs are paid through non-federal sources. These might be private donations, or proceeds from a free-standing fee-for-service project that doesn’t use any federal funds.

So can a SILC promote a survey of constituents on a matter which is contained within the state plan — and present the results of that survey to an agency or department or Governor or Legislative Committee? If advocacy is included in the SPIL, and this is a SPIL goal area, yes.

Can SILCs or CILs have an advocacy fund where contributions are made for the purpose of supporting advocacy with government officials to further the cause(s) established in the state plan or the CIL’s work plan?  Yes. Such a fund can pay for any advocacy, including lobbying.

Can a SILC or CIL hire or employ attorneys with private funds — or else rely on other legal counsel such as P&As with private funds  — or upon pro bono advocacy by private law firms . . . to further their Independent Living MISSION? Typically the budget is a barrier to hiring an attorney on staff, although some CILs have done so. Using pro bono legal advice and assistance in advocacy would be allowed, and even paying the attorney is allowed if the budget is sufficient.

Can advocacy include actions other than written or spoken testimony? Things like media interviews, op-ed pieces, mobilizing consumers with signs, or filing complaints can be effective advocacy efforts.

You should be advocating — with the disability community — for equal access and justice for people with disabilities throughout your community, your state, and your country.

(Special thanks to Daisy Feidt, Access Living, Chicago for some of the wording describing advocacy.)