Sometimes it is unclear whether a worker is an employee or contractor. Yet improper classification may not only result in fines and penalties by the IRS, but can also leave the employer open to other liabilities and lost income. The criteria I use to determine if an individual is deemed to be an employee or an independent contractor is based on the following three principles:
1. Determine who has control over how the work is performed. When the work is done according to employer’s specification, the worker is typically classified as an employee. Control can be acknowledged in a number of ways. For example, a restaurant employs a food service worker, who prepares meals according to instructions by management. The worker is considered an employee.
2. The amount of time and payment terms. When the person is paid based on completion of an assignment, and/or wages are agreed to be paid upon satisfaction by the employer, the perception is that the worker is independent. Other factors indicating an independent relationship are that the worker determines when the work is completed and splits his time between several employers.
3. The behavior of the parties and agreement between the parties. Here is when actions speak louder than words. An employee cannot send in a replacement, but an independent contractor can subcontract the job. Who provides the tools, who can terminate the relationship, and who determines the rate charged are all factors to consider when classifying worker status.
When in doubt, the IRS can make a determination on a case by case basis. For more information, go to http://www.irs.gov/newsroom/article/0,,id=173423,00.html.
