Employee vs. Independent Contractor


Do things seem a little hazy? Like the picture above, knowing whether that new hire is an employee or an independent contractor can be a little fuzzy. However, mistakenly classifying an employee as an independent contractor can result in significant fines and penalties. There are 20 factors used by the IRS to determine whether you have enough control over a worker to be an employer. Though these rules are intended only as a guide-the IRS says the importance of each factor depends on the individual circumstances-they should be helpful in determining whether you wield enough control to show an employer-employee relationship.

Checklist for Independent Contractor Status

Listed below you will find the a slew of factors with brief explanations of how to interpret each factor.  If you answer “Yes” to all of the first four questions, you’re probably dealing with an independent contractor. If you answer “Yes” to any of questions 5 through 20 means your worker is probably an employee.

4 Essential Independent Contractor Tests

In order to be considered an independent contractor you MUST answer “Yes” to the following Items:

  • 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.)
  • 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.)
  • 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.)
  • Services offered to the general public: Does the worker offer services to the general public?

Other Tests of Independent vs Employee

To further determine if you might be at risk of having a contractor be considered an Employee by the IRS, you should evaluate him/her based on the following:

Supervisory Roles

  • Instructions. Do you have the right to give the worker instructions about when, where, and how to work? (This shows control over the worker and although it’s not a pure litmus test, alongside other items below, it may create an employee situation.)
  • Hiring assistants. Do you hire, supervise, and pay the worker’s assistants? (Independent contractors hire and pay their own staff.)
  • 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.)
  • Sequence. Do you have the right to determine the order in which services are performed? (This shows control over the worker)
  • Reports. Must the worker give you reports accounting for his or her actions? (This may show lack of independence)

Relationship and Hours

  • 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.)
  • Work hours. Do you set the worker’s hours? (Independent contractors are masters of their own time.)
  • 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.)
  • Training. Do you train the worker to do the job in a particular way? (Independent contractors are already trained.)
  • 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.)

Financial Considerations

  • 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.)
  • Expenses. Do you pay the worker’s business or travel costs? (This tends to show control.)
  • 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.)

Your Business and the Individual

  • 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.)
  • 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.)
  • 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.)

Before you make a final determination as to whether you’ve just hired an Employee or an Independent Contractor call us at 859-236-8888. We can help you make sure that you have classified that new hire correctly and avoid potential problems with the IRS and state tax agencies.

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