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Are you really an independent contractor?

There is often a lot of confusion surrounding whether someone is an independent contractor or an employee.

The correct classification is determined by each given specific situation, but there are a number of factors that can be used to help guide the determination.

The analysis hinges on the level of control the employer has over the worker.

Mistakenly using one classification when the other is actually more appropriate can result in significant fines and penalties.

The following is a list of factors the IRS has published to help determine whether someone is an employee or an independent contractor, but it is always a good idea to check with an attorney familiar with these factors and classifications.

IRS 20-point checklist for independent contractors:

  1. Profit or loss. Can the worker make a profit or suffer a loss as a result of the work, aside from the money earned from the project? (This should involve real economic risk-not just the risk of not getting paid.)
  2. Investment. Does the worker have an investment in the equipment and facilities used to do the work? (The greater the investment, the more likely independent contractor status.)
  3. Works for more than one firm. Does the person work for more than one company at a time? (This tends to indicate independent contractor status, but isn’t conclusive since employees can also work for more than one employer.)
  4. Services offered to the general public. Does the worker offer services to the general public?
  5. Instructions. Do you have the right to give the worker instructions about when, where, and how to work? (This shows control over the worker.)
  6. Training. Do you train the worker to do the job in a particular way? (Independent contractors are already trained.)
  7. Integration. Are the worker’s services so important to your business that they have become a necessary part of the business? (This may show that the worker is subject to your control.)
  8. Services rendered personally. Must the worker provide the services personally, as opposed to delegating tasks to someone else? (This indicates that you are interested in the methods employed, and not just the results.)
  9. Hiring assistants. Do you hire, supervise, and pay the worker’s assistants? (Independent contractors hire and pay their own staff.)
  10. Continuing relationship. Is there an ongoing relationship between the worker and yourself? (A relationship can be considered ongoing if services are performed frequently, but irregularly.)
  11. Work hours. Do you set the worker’s hours? (Independent contractors are masters of their own time.)
  12. Full-time work. Must the worker spend all of his or her time on your job? (Independent contractors choose when and where they will work.)
  13. Work done on premises. Must the individual work on your premises, or do you control the route or location where the work must be performed? (Answering no doesn’t by itself mean independent contractor status.)
  14. Sequence. Do you have the right to determine the order in which services are performed? (This shows control over the worker)
  15. Reports. Must the worker give you reports accounting for his or her actions? (This may show lack of independence)
  16. Pay Schedules. Do you pay the worker by hour, week, or month? (Independent contractors are generally paid by the job or commission, although by industry practice, some are paid by the hour.)
  17. Expenses. Do you pay the worker’s business or travel costs? (This tends to show control.)
  18. Tools and materials. Do you provide the worker with equipment, tools, or materials? (Independent contractors generally supply the materials for the job and use their own tools and equipment.)
  19. Right to fire. Can you fire the worker? (An independent contractor can’t be fired without subjecting you to the risk of breach of contract lawsuit.)
  20. Worker’s right to quit. Can the worker quit at any time, without incurring liability? (An independent contractor has a legal obligation to complete the contract.)

This is not intended to be legal advice.  You should contact an attorney for advice regarding your specific situation.

Kelly A. Pressler is senior counsel and practices General Civil Litigation and Municipal Litigation.

She can be reached by phone at 866-303-9595 toll free or 845-764-9565 and by email.

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