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How to Determine If a Worker is an Employee or an Independent Contractor
Worker classification is how you determine whether a worker is an employee or an independent contractor. What’s at stake? How your workers are classified affects their legal protections (like minimum wage and OT rights), taxation, and benefits. For you the employer, you must comply with the law on this matter. Since more responsibility and liability rest on your shoulders and since the classification can affect your profits, it’s of great concern to you. But that’s also why the Department of Labor (DOL) is concerned that companies may be trying to skirt the issue.
Although the DOL prefers to use the economic realities test, there are a few other tests that likewise are used to determine if a worker is an employee or an independent contractor. Some of these tests are the Internal Revenue Service (IRS) test, the hybrid test, and the common law or agency test.
According to the Merriam-Webster dictionary, the economic realities test “considers such things as the extent of the alleged employer's ability to control, hire, fire, and discipline the person, the nature of the person's duties, and the payment of wages.” Essentially, the DOL wants to clearly understand if a worker is dependent on the employer economically. Or is the worker engaged in business for him- or herself? If there is a dependency, the worker should be classified as an employee, thus affording the worker protection by employment laws, such as the FLSA (Fair Labor Standards Act) and the FMLA (Family and Medical Leave Act).
What the Economic Realities Test Is, and What it Isn’t
You might think that certain factors play a role in determining the issue when using the economic reality test. Things like the location of where the work is performed, the worker being licensed by the state or local government, not having a formal employment agreement, when payment is made, and how the payment is made. However, none of these are determining factors.
Some of the factors that do matter under the economic realities test are:
- How much control does the principal hold? What’s the nature and degree of it?
- How much has the alleged contractor invested in facilities and equipment?
- How integral are the services rendered to the principal’s business?
- Is the relationship permanent?
- The opportunities for profit and loss by the alleged contractor.
These are some but not all of the determining factors. What’s more, is that no single factor can make the determination. Rather, the whole situation must be analyzed to determine what relationship exists between the employer and the worker (you may also be interested in Exemptions for ABC Testing).
The DOL’s Interpretation
The DOL has gone back and forth in terms of what they believe the probabilities are because of applying the economic realities test. At one point, about 7 years ago (from the date of this blog), it took the position ‘most workers are employees.’ A year later, it stood by that determination.
However, in 2017, there was some wavering. A year later in 2018, the DOL reverted to an even earlier position (from 2008), which omits the language which carried the position stating, ‘most workers are employees.’
In essence, the DOL wants the responsibility to interpret the issue to lie with the judicial system, instead of the DOL itself. This position may open the door for more employer flexibility in how workers are classified.
There is always a ‘but’ or a ‘gotcha’. There are still some scenarios that the DOL is tracking closely. Why? The following 5 situations or areas where the DOL knows that workers may be improperly classified. As a result, employers should pay special attention to ensure that they are correctly classifying their workers.
- Those who work from home: Remember, location doesn’t determine a worker’s classification. Home workers are often improperly classified. However, they are also entitled to all the benefits the law affords them.
- Volunteers: A volunteer cannot perform work for the same employer with which he holds a position as an employee. However, it is noteworthy that they may volunteer or donate their services to public service, religious, and non-profit organizations and not be considered an employee.
- Trainees/students: Depending on how they are used, trainees and/or students may also be classified as employees.
- Construction ‘Independent Contractors’: It doesn’t matter what you want to classify them as, if an independent contractor does not meet the tests for independence, they should be considered as employees.
- Franchise arrangements: The level of control the franchisor has over the franchisee, will dictate if the employees of the franchisee are employees of the franchisor.
Please contact TPG Insurance Services for additional information on appropriate worker classification and form 1099 and form w-2.
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