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2.2. Personal assistants and liability

The U.S. Department of Labor projects that Americans will employ 433,000 more personal assistants, or "PA"s, for home-based services by 2008, an increase of 58% over current levels. A PA can help individuals with SCI become more active and independent and to realize their goals. Like any other resource, however, assistants need to be properly managed to gain the greatest potential benefit, and to avoid legal pitfalls.

Hiring the Personal Assistant

Hiring assistants through agencies is costly and affords less control over the process. Hiring them directly places you in the daunting and probably unfamiliar role of being an employer. Either way, before retaining anyone, you should make a thorough inventory of your personal needs and desires. What personal care or homemaking services would you like? Your inventory will help frame advertisements for the position, any expectations that you create during the job interview, and any written contract you ultimately execute. Based on your inventory, you should also be able to determine the assistant's qualifications, requirements, and wages.

Regardless of the skill level required, any candidates should meet certain minimum criteria. They should: 1. be at least 18 years old (you cannot execute a legally enforceable contract with a minor); 2. possess a valid social security number (required for withholding or social security taxes); and 3. possess a driver's license and authorize you to perform a criminal check — local police will investigate a candidate's background for you.

Ask job applicants for at least two professional references. Be careful how you frame questions; it is illegal to ask candidates about their ethnic origin, nationality, race, political beliefs, or source(s) of income. Ask only what affects their ability to perform the essential functions of the job. For example, you may not legally ask candidates if they are married or have children, but you may ask if work on weekends or holidays would pose a problem. You may not legally ask if candidates have a disability or pre-existing health condition, but you may inquire whether they could help you transfer from a wheelchair, for instance. You may not ask candidates their age, but you may obtain assurance that they are eighteen years or older.

If you extend a job offer, you may want the assistant to sign a written contract, which should specify job duties, hours of work, days off, wages, and possible grounds for termination. The grounds for termination should be broadly phrased to permit discharge for any reason within your complete discretion.

Managing the Personal Assistant

After hiring an assistant, provide proper training to clarify duties and performance standards. Proper training may also protect you from liability to third parties if the assistant negligently injures another while on the job.

Orient the assistant with a tour of the house, showing where supplies and equipment are kept, and discuss your disability and any specific health-related issues. Inform the assistant of any safety guidelines for disability-related equipment or household appliances. Discuss whether the assistant has the right to use any personal items in the household and your ground rules for privacy and confidentiality.

Whether you hired the assistant directly or used an agency, you are considered a supervisor and will be expected to direct the PA's work. Accurate record keeping is necessary for compensation and tax purposes; you may want the assistant to sign time sheets.

The nature of assistant work often blurs the lines between supervisor and employee. PAs might be involved with private, sensitive aspects of your life. You need to keep in mind how your interactions with your assistant may be perceived. To protect yourself from possible liability, you must avoid — and refuse to condone — any conduct that could be considered sexual harassment or abuse.

Firing the Personal Assistant

Best-laid plans do not always work out, so be prepared for the possibility that a PA will leave your employ.

If you initiate the separation, make sure you first provided the assistant prior feedback about his or her job performance. Give your PA an opportunity to improve. If the employee has not been able to improve, then you may wish to terminate him or her.

Unless your employment contract provides otherwise, PAs are generally considered "at will" employees and may be fired at any time for any reason, so long as the reason (for example, unlawful discrimination or retaliation) does not offend public policy. If a terminated employee might get upset and leave immediately, you should plan for a backup. If there is a chance that the employee might become angry and put you at risk, arrange to have a third person present. Before concluding the relationship, be sure to retrieve any keys in the assistant's possession.

If he or she has stolen anything from you, been abusive or severely breached your employment contract, terminate the PA's employment immediately. Any misconduct which violates the law should be reported to the police. If immediate termination is not necessary, you may wish to give the assistant two weeks notice to find a new position, provided their continued presence would not make you uncomfortable.

PAs can be a deeply significant adaptive resource for attaining your fullest potential. The more time you devote to the process of hiring, training, and supervising an assistant, the more likely you will be to have a beneficial and hassle-free relationship.