GUEST COLUMN: Don’t misclassify independent contractors

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From Buffalo – Buffalo Business First —  

The following are some additional best practices for creating an independent contractor relationship:

  • It is important that an independent contractor be free to accept or reject assignments. Do not provide contractors with training and provide minimal instructions on how to complete work. While supervision should generally be avoided, attorneys must still comply with their ethical obligations to oversee subordinates. This can be a very fine line and places legal employers in a difficult position between too much or not enough oversight.
  • Do not pay a contractor any fringe benefits. If the contractor is required to have a professional license or take professional courses (such as CLEs), they should pay for their own license/renewals and courses and their own malpractice coverage.
  • Do not require contractors to attend employee meetings and events or allow them to work out of your office on a regular basis. The contractor should also generally use his or her own resources, not those of the company or firm. Contractors should furnish all the tools and supplies they need to perform under the contract.
  • Do not submit contractors to discipline for poor performance or other workplace issues. The only sanction should be termination of the contract according to its terms.
  • Require contractors to submit invoices and pay them as you would any other vendor. When paying a contractor, issue a 1099 tax form and do not withhold income taxes.

There are other factors, as well, and even lawyers should consult with employment counsel when engaging an independent contractor. Also, a written agreement is important to define the obligations of the parties and is recommended, but notably, it is not controlling and does not by itself create an independent contractor relationship…..”

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