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<!–:en–>DO YOU HAVE INDEPENDENT CONTRACTORS & AND SHOULD THEY REALLY BE EMPLOYEES?<!–:–>
February 17, 2012One of the hottest topics in the HR world currently is that of independent contractors and whether they are misclassified and should be employees. Although there are loads of test to help you figure that out, the problem is that there are too many tests from too many sources and many employers get confused and don’t want to wade through all the documentation. Although it’s not the only source, one of the best ways to get an idea if you have a problem on your hand is to take a look at the following questions that come out of the Internal Revenue Service 20-Factor test. Although the 20-factor test has been updated in recent years to become an 11-factor test, this test is still very relevant.
| FACTOR | QUESTION TO EMPLOYER |
COMMENT |
| Factor 1 Instructions |
Do you have control on determining when, where & how work is done? |
A worker who is required to comply with other persons’ instructions about when, where, and how he or she is to work is ordinarily an employee. This control factor is present if the person or persons for whom the services are performed have the right to require compliance with instructions |
| Factor 2 Training |
Do you provide company training to the worker? |
Training a worker by requiring an experienced employee to work with the worker, by corresponding with the worker, by requiring the worker to attend meetings, or by using other methods, indicates that the person or persons for whom the services are performed want the services performed in a particular method or manner. |
| Factor 3 Integration |
Is the work performed by the worker a key part of your business operation? |
Integration of the worker’s services into the business operations generally shows that the worker is subject to direction and control. When the success or continuation of a business depends to an appreciable degree upon the performance of certain services, the workers who perform those services must necessarily be subject to a certain amount of control by the owner of the business. |
| Factor 4 Services Rendered Personally |
Do you insist that one particular person perform the work? |
When an employer is insisting that a particular person perform the work, it can be strongly assumed that the work performed is being controlled by the employer. However, when the worker retains control over such things as hiring, supervising & paying helpers, the situation looks more like an independent contractor relationship. |
| Factor 5 Hiring Assistants |
Do you hire, supervise and pay a worker’s assistants? |
If the person for whom the services are performed hires, supervises, and pays assistants, that factor generally shows control over the workers on the job. However, if one worker hires, supervises, and pays the other assistants pursuant to a contract under which the worker agrees to provide materials and labor, and under which the worker is responsible only for the attainment of a result, this factor indicates an independent contractor status. |
| Factor 6 Continuing Relationship |
How long have you employed the worker? |
The longer the business relationship continues, the more likely the worker is an employee. The shorter the business relationship continues, the more likely the worker is an independent contractor. |
| Factor 7 Set Hours of Work |
Do you require the worker to work certain hours at your worksite? |
The establishment of set hours of work by the Employer is a factor indicating control and therefore strongly indicating the person is an employee. The more a worker has control over their hours and work schedule indicates an independent contractor. |
| Factor 8 Full Time Work Requirements |
How much time do you require the worker to devote to your operation? |
If the worker must devote substantially full time to the business of the person for whom the services are performed, such person has control over the amount of time the worker spends working and impliedly restrict the worker from doing other gainful work. An independent contractor, on the other hand, is free to work when and for whom he or she chooses. |
| Factor 9 Working on Employer Premises |
Must the worker perform work activities at your physical business location? |
If the work is performed on the premises of the person for whom the services are performed, that factor suggests control over the worker, especially if the work could be done elsewhere. Work done off the premises of the person receiving the services, such as at the office of the worker, indicates some freedom from control. However, this fact by itself does not mean that the worker is not an employee. The importance of this factor depends on the nature of the service involved and the extent to which an employer generally would require that employees perform such services on the employer’s premises. Control over the place of work is indicated when the person or persons for whom the services are performed have the right to compel the worker to travel a designated route, to canvass a territory within a certain time, or to work at specific places as required. |
| Factor 10 Order or Sequence Set |
Does the worker need to follow your business process or do they have the flexibility to decide how to accomplish the work? |
If a worker must perform services in the order or sequence set by the person for whom the services are performed, that factor shows that the worker is not free to follow the worker’s own pattern of work but must follow the established routines and schedules of the person for whom the services are performed. Often, because of the nature of an occupation, the person for whom the services are performed does not set the order of the services or sets the order infrequently. It is sufficient to show control, however, if such person or persons retain the right to do so. |
| Factor 11 Reports |
Do you require the worker to submit regular reports? |
A requirement that the worker submit regular or written reports to the person for whom the services are performed indicates a degree of control. |
| Factor 12 Payment Method |
How do you pay the worker? | Payment by the hour, week, or month generally points to an employer/employee relationship. Another strong indication that the worker is an “employee” is when the employer provides benefits such as insurance to the worker. An independent is generally paid by the job, project, assignment, etc., or receives a commission or similar fee and has his/her own established benefits program. |
| Factor 13 Expenses
|
Do you reimburse the worker for business and/or travel expenses? |
If the employer ordinarily pays the worker’s business and/or travel expenses, there is a strong indication that the worker is an employee. An employer, to be able to control expenses, generally retains the right to regulate the worker’s business activities. |
| Factor 14 Tools & Materials
|
Are you providing the worker with an office, internet, computes, tools to accomplish work? |
The fact that the person for whom the services are performed furnishes significant tools, materials, and other equipment tends to show the existence of an employer-employee relationship. |
| Factor 15 Significant Investment |
Does the worker have their own office facilities to conduct business besides your office? |
If the worker invests in facilities that are used by the worker in performing services and that are not typically maintained by employees (such as the maintenance of an office rented at fair value from an unrelated party), that factor tends to indicate that the worker is an independent contractor. On the other hand, lack of investment in facilities indicates dependence on the person or persons for whom the services are performed for such facilities and, accordingly, the existence of an employer-employee relationship. Special scrutiny is required with respect to certain types of facilities, such as home offices. |
| Factor 16 Realization of Profit or Loss
|
Does the worker receive set wages? | An employee may be rewarded, disciplined, demoted or fired depending on their job performance; However, an independent contractor can realize a profit or incur a loss from his/her work. |
| Factor 17 Working for More than One Business |
Does the worker perform work for other people besides you? |
If a worker performs various services for a multiple of unrelated persons or firms at the same time, that factor generally indicates that the worker is an independent contractor. However, a worker who performs services for more than one person may be an employee of each of the persons, especially where such persons are part of the same service arrangement. |
| Factor 18 Availability of Worker’s Services |
Does the worker offer his/her services to the public? |
The fact that a worker makes his or her services available to the general public (e.g., internet, newspaper, TV advertisement) on a regular and consistent basis indicates an independent contractor relationship. |
| Factor 19 Employer’s Right to Fire Worker |
Can the worker be fired “at will” or does he/she have a contract with term and requiring him/her to produce certain results. |
The right to discharge a worker is a factor indicating that the worker is an employee and the person possessing the right is an employer. An employer exercises control through the threat of dismissal, which causes the worker to obey the employer’s instructions. An independent contractor, on the other hand, cannot be fired so long as the independent contractor produces a result that meets the contract specifications. |
| Factor 20 Worker’s Right to Quit |
Can the worker end the working relationship without any liability? |
If the worker has the right to end his or her relationship with the person for whom the services are performed at any time he or she wishes without incurring liability, that factor indicates an employer-employee relationship as opposed to a contractual relationship that specifies a term beginning and end date. |