Re: [Iasa20] employees and contractors in 6635bis

[Stephen Farrell <[e-mail]>]

Hiya,

(Deleting no longer needed bits...)

On 01/05/2019 01:50, Eric Rescorla wrote:
> On Tue, Apr 30, 2019 at 5:34 PM Stephen Farrell <[e-mail]>
> wrote:
>>
>> On 01/05/2019 01:11, Eric Rescorla wrote:
>>> On Tue, Apr 30, 2019 at 4:02 PM Stephen Farrell <
>> [e-mail]>
>>> wrote:
>>>
>>> This seems like an argument for giving the LLC *more* latitude here,
>>> because as this discussion has shown, there are places where it's
>>> advantageous to have people with whom you have a long-term
>>> engagement be a contractor and others where it's advantageous
>>> to have them be an employee.
>>
>> I interpret things differently. The contractor arrangement seems
>> to me to fit the RSE role regardless of geography.
> 
> 
> But this is precisely the point that John, Richard, and I have
> been making, namely that it's actually *not* clear that the contractor
> arrangement is a good fit for the RSE role in certain jurisdictions.

Sorry, I don't recall any good argument that the contractor
arrangement has problems. We seem to have O(400) or so bits
of evidence per year that the current setup works to an
extent.

In particular, the only geographic argument on this list that
I recall is the one I made to the effect that the RSE as an
employee can be problematic. If someone made a claim to the
effect that a contracting arrangement could raise geographic
or jurisdictional issues, I'll need you to send me a link to
the archive for those mails, as I do not recall seeing that
argument having been made.

> 
> 
> In contrast
>> employee arrangements seem like a total misfit for at least
>> countries like Ireland (perhaps most of the EU?). And I do not
>> want the LLC to have fictional flexibility that really represents
>> a cumbersome constraint when it comes to RSE selection.
>>
> 
> In what way is this flexibility a constraint.

Sorry, I don't see how to do better than the explanation I used
in an earlier mail. (That's the one where I asked where I was
wrong and have yet to see a specific reply setting out why I was
wrong;-)

> 
>> So, I'm not sure I follow your argument here, which seems to be that
>>> you think we ought to constrain the LLC in this respect.
>>
>> I do think we ought do that. Sorry if I've not explained it
>> sufficiently well.
> 
> Yes, I get that, but it doesn't seem to follow in any way from the
> arguments you are advancing.

We disagree. Asserting that my argument is unfounded without
stating the basis on which you conclude that seems... unfounded,
but luckily we're both now doing that;-)

> 
> 
>>> Here in the US, if you hire a person as a contractor but the the
>>>>> nature of the job is more like an employee (the so called IRS 20
>>>>> questions), the person can file an SS-8 form with the IRS to ask to be
>>>>> reclassified as an employee.  If the IRS agrees, the employer has to
>>>>> pay unemployment and social security and medicare taxes for the
>>>>> employee, retroactive to when they were hired.  It can be a
>>>>> significant financial risk for the employer.
>>>>
>>>> Yes. But the RSE role has not been "more like an employee"
>>>> at all.
>>>>
>>>
>>> Without taking a position on the nature of the RSE,
>>
>> I believe the IETF has a position on that. (Not that the IETF is
>> the only entity who may care about the RSE role etc...)
>>
> 
> Sorry, what I mean to say is that I am not taking a position on
> whether the IRS would judge that the RSE was actually an
> employee.

And that was not the (only) issue. The new point I raised in
this thread is all about "what if the RSE were an employee"
and has nothing at all to do with the details of employee
vs contractor distinction minutiae in any one jurisdiction.
In case it helps, the relevant legislation here is explained
at [1] and I do have some knowledge of it, having used it
to get my $dayjob employer to continue paying me when they
might otherwise have chosen to decline the fun of that :-)

Cheers,
S.

[1]
https://www.workplacerelations.ie/en/Publications_Forms/Guide_-_Protection_of_Employees_Fixed-term_Work_Act.pdf

> 
> -Ekr
>