Determining Independent Contractor Compliance
It's alarming how few freelancers are aware that there is a mandate for employers to comply with strict, but loosely defined, rules when hiring freelance stagehands - identified as independent contractors. It's not surprising however, since even those employers, HR specialists, labor specialists and even the independent contractors themselves argue over their interpretation of the rules. The guidelines, applicable state and federal laws and regulatory and legal requirements are a constant topic among our team, and we want to open the conversation up to our entire community and ensure all our colleagues and clients are aware of the current guidelines.
There 20 factors used by the IRS to determine whether an employer has enough control over a worker for that worker to be classified as an employee, rather than a contractor. Though these rules are intended only as a guide - the IRS says the importance of each factor depends on the individual circumstances - they are helpful in determining whether our relationships demonstrates an employer-employee relationship. When the answer is “Yes” to the first four questions, you can typically satisfy compliance as an independent contractor; “Yes” to any of questions 5 through 20 means we will need to classify you as an employee, subject to backup withholding, among other requirements.
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.)