Employee, Independent Contractor or Intern

The varied differences between an employee, independent contractor or an intern at times becomes so obscure to tell the difference. Lately, institutions including government have utilized the internship model for purposes of work-placements for instance, the Jobs4Youth Project rolled out by the Malawi Government. In Malawi labour matters are primary regulated under the Employment Act and the Labour Relations Act.

An employee is regarded as a person who offers his services under oral or written contract of employment, whether express or implied; or any person, who performs work or services for another person for renumeration or reward on such terms and conditions that he is in relation to that person in a position of economic dependence on, and under an obligation to perform duties for, that person more closely resembling the relationship of employee than that of an independent contractor.

Courts have considered some critical elements that have to be met to determine that an employment contract prevails. These include that the person is under a legal obligation to perform work; that the person receiving the services is under an obligation to renumerate the person rendering the services; and the person who offers his work is dependent on the person providing the work economically. Where all these three conditions are present that will constitute a form of employment.

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Employees are regarded differently with others being classified as permanent, seasonal or casual employees. Permanent employees would be those whose work is integral to the institution and their position is aimed at filling on a lasting basis of a post connected with the normal and permanent activity of an undertaking for an unspecified period of time. Seasonal employees are mostly common in the tobacco industry and are called at the beginning of a tobacco marketing season. When the season ends the employment is automatically terminated. At time a seasonal employee is called for consecutive seasons, however does not entail that the person is a permanent employee. On the other hand, casual employees are not defined by labour laws. The marked difference for casual employees is the fact that employers are not entitled to grant them sick leave, notice pay or leave or overtime. Employers are only obliged to pay them for wages for actual work performed; for instance, a person recruited specifically to slash grass and is paid upon completion of the task. ?

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In as much labour laws mention an independent contractor in Malawi, the laws do specifically define the term. Independent contractors may be hired for short term or long-term contracts, such as building projects. Independent Contractors have a lot more control over when, where and how they work. The key issue to note is that independent contractors have extensive independence from the institution or person that recruited them.

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Then there is the ever growing global phenomenon of internships or traineeships or work-placements which presents a novel aspect in the field of labour law. Evidently, internships are not specifically articulated in our laws. Interns are usually placed in different institutions to attain skills and knowledge. The core objective of internships is the provision of an elevation platform for capacity building of people in a particular career or technical expertise. Of course, interns are paid; most will undertake their work at a particular time as provided for in a job description and may be part of the integral part of an institution, however they are not employees. The key factors that will be considered in circumstances of differentiating employees from interns include consideration of the nature of the role, the value of the position to the intern and the company and the extent to which the placement benefits the intern in terms of their academic or career progression. Interns unlike employees may not be entitled to other benefits that employees attain at the same institution, such as allocation of institutional accommodation or entitlement to be paid overtime. Internships can be short or lengthy; months long or years on end. Organisations that offer internship or work-placement or traineeship programs are most likely to offer employment, where a vacancy arises, to a successfully interviewed person, who was an intern at their organization. ?

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It is thus very important that any time work is being undertaken, the parties clearly spell out and prudently in written form, whether the person is an employee, independent contractor or an intern.