Thank you, Paul. Yours is the first response I received and so far, I've come to the same conclusion regarding not locating specific prohibition. Our USDOL representative says Wagner-Peyser should serve everyone, but the definition of "employer" in the Act, and provision regarding use of 90% and 10% funds could be argued to point to a different conclusion. I certainly think that for placing job orders in the system and for federal reporting purposes the employer-employee relationship must exist, but beyond that I am not convinced Wagner-Peyser staff could not participate in providing services to independent contractors. For instance in Kansas the state annually operates a seasonal wheat harvest program part of which involves facilitating contact between independent "custom cutters" of the crop and Kansas farmers that have wheat to be harvested. We've never used WP funds for fear of an audit exception but I'm not yet convinced it wouldn't be appropriate. John -----Original Message----- From: Mason, Paul (LABOR) [mailto:Paul.Mason@xxxxxxxxxxxxxxxxx] Sent: Thursday, September 29, 2005 11:00 AM To: John L. Yeary Cc: wiaattorneys@xxxxxxxxxxxxx Subject: FW: Commission Only Sales Jobs or Independent Contractor Opportunities -- Three Questions John - This is in response to your questions concerning providing services to independent contractors through the job service system. Although it is implicit in the stated purpose in the regulations, I don't see anything that prohibits it. We were asked the same question by one of the WIBS. I think you raised the issue if it could be done on a fee-for-service basis. Basically, our existing policies have not allowed it although they are dated. Our research indicates that the Wagner-Peyser grant used to not allow charging of fees to supplement program income but now does allow it for certain purposes beyond what is covered by the grant. It's not always clear what is part of the core grant and what can be considered in addition to the services required under the grant so these issues might be problematic. The program staff have expressed some concerns about the types and scope of orders that would potentially be placed by independent contractors. By the way, America's Job Bank has the following statement: "There must be an "employer-employee" relationship. A wage must be provided. Our acceptance of commission only and independent contractor positions are subject to the policy of the state in which you are located. In general, these types of relations do not meet the "employer-employee" relationship." Did you find anything else out? Paul ________________________________ From: O'Keefe, Tim (LABOR) Sent: Wednesday, September 28, 2005 4:51 PM To: Sewell, Valerie R (LABOR); Mason, Paul (LABOR) Cc: Kelly, Mary (LABOR) Subject: RE: Commission Only Sales Jobs or Independent Contractor Opportunities -- Three Questions It states in our Community Services Manual dated 9/27/96, Section 3050, that we should not accept job orders where social security taxes are not paid by the employer. I am not sure if that has been updated. The answer to the question on servicing independent contractor positions was pulled from the CSC Manual. ________________________________ From: Sewell, Valerie R (LABOR) Sent: Wednesday, September 28, 2005 3:50 PM To: Mason, Paul (LABOR) Cc: Kelly, Mary (LABOR); O'Keefe, Tim (LABOR) Subject: Commission Only Sales Jobs or Independent Contractor Opportunities -- Three Questions Other than Wagner-Peyser is clearly structured to provide services to employers, I can't find a specific prohibition against listing independent contractor openings or commission-only sales positions. Wisconsin job order policy states: State law requires that all employees be paid at least minimum wage for all covered employment regardless of the method of compensation. A job order should clearly state the method of compensation: salary, salary plus commission, straight commission (also known as commission only), performance based, incentive, or piecework. To be listed on JobNet, all job orders must provide total compensation of at least the minimum wage for any hours worked or spent in required training. Federal, state, and local-municipal laws and ordinances apply. Apply the higher or most stringent law when there is a conflict. Jobs that pay straight commission cannot be included if they only pay when a product is sold, and do not guarantee the worker at least a minimum wage for the hours worked. Employers should be informed at the time of listing that the minimum wage law applies. If a job listing indicates that a draw against commission is received, the job can only be listed on JobNet if the employer guarantees minimum wage for the hours worked or spent in required training after the draw. A draw is usually compensation that has to be paid back to the employer by being subtracted from future commissions. Q.1 So I'm wondering if this same policy might be applicable in NYS (all employees must be paid at least minimum wage)? Wisconsin also had job order policy pertaining to Independent Contractor Opportunities: The purpose of the public labor exchange is to facilitate employment. Job orders will only be accepted that offer employment opportunities where an employer-employee relationship will exist. Independent contractor opportunities are self-employment, which represent business opportunities, rather than employment . The individual is responsible for paying his/her own quarterly income taxes, disability insurance in lieu of Worker's Compensation, Social Security taxes, Unemployment Insurance taxes, and other such costs of doing business. Such requests cannot be accepted as job orders. The regulatory citations mentioned were: 20 CFR 651.10, 20, 30 and 50 and USC 29 Section 49 (Wagner-Peyser Act) 20 CFR 651.10 still exists and includes a definition for "employer", but there is no longer any 20, 30 or 50. Q. 2 Is there a way that you can find out what these old regulations stated? I'm wondering if they explicitly prohibited listing independent contractor opportunities (that might tell us something if these regulations were recently deleted), and Q. 3 Would you interpret that the intent of Wagner-Peyser (which is FUTA funded) was to provide services to job seekers and employers? Is it implicit that job orders should be listings for employers seeking employees? Aside from this I would really worry about opening the public job bank to including "business opportunities" - you can just read all the junk in the classified ads of your local newspaper -- "Stuff envelopes at home and earn $20,000 a year etc." Where would you draw the line? What about Amway, Tupperware etc? Can't imagine we would want to go there. And if a customer took one of these business opportunities listed as a "job order" , couldn't they file a complaint with us? And I gave you a copy of the AJB language stating it expected an employer-employee relationship (but deferred to States' policy). BACKGROUND The specific question that we received from the Chautauqua Business Services Team was: In terms of job orders, can we post jobs that are commission-based or independent contractors? If not, why not? The draft answer provided was from our procedure (I dropped off copy with you so I'm not going to type all that here). Maggie's comment was: I am unclear why we don't accept job orders from those seeking independent contractors. Thank you!!