From Credo Financial Services, Dan Lucas discusses the consequences of misclassifying a worker as an independent contractor instead of employee including paying back taxes and benefits under any benefits plan established by the company. In addition, he provides general guidance as to how to tell the difference between an employee and independent contractor, with appropriate caveats. He writes:
Please do not rely on this list as a complete description of what you need to know. I am making general statements.
- If the person is receiving instructions from the employer, they are an EE.
- If the person has to be trained by the company or an EE of the company, they are an EE.
- If a material business success or failure rides on the person’s efforts, they are deemed an EE.
- If the services are rendered personally, it is presumed that the company that hired the person is interested in the methods used to accomplish the work, therefore making them an EE.
- If the person controls other EEs of the company, they are an EE.
- If there is a continuing relationship, an EE relationship can be assumed.
- If work hours are established by the company, the person is an EE.
- If the person works substantially a full-time work week, an EE classification can be assumed.
- If the person is working on the company’s premises, the assumption of control exists.
- If the person must complete the work in a certain order, this implies control.
- If the person submits oral or written reports, control is assumed.
- Payment by the Hour, Week, or Month – implies the person is an EE. Payment by the job or on a straight commission implies the person is an IC.
- Payment of the person’s business or travel expenses – implies the person is an EE.
- If the person is furnished tools or materials to complete their work, control is assumed.
- If the person is handling a “significant investment” made by the company, control is assumed.
- If the person performing the work can experience a profit or loss as a result of their work, they are generally assumed to be an IC.
- If the person is working for more than one company at a time, this suggests that they are an IC.
- If the person makes their services available to the general public, that suggests that they are an IC.
- If the company can fire or discharge the person at will, it is assumed that they are an EE. If they cannot be fired so long as they are discharging their duties, an IC relationship can be established.
- Right to Terminate – If the individual has the right to terminate the relationship without incurring liability, this indicates an EE relationship is present.
In closing, all the facts and circumstances must be considered in weighing these factors to determine whether the relationship is an EE or an IC relationship. No one factor will be determinative in making the correct classification.
Read the full story at What are the consequences if an employer wrongly characterizes an employee as an independent contractor?.