Independent contractors

Independent contractors
Authored by Andrew Wampler

Wilson 1bca35f096d56ee718c45bfa7080d4cdc0dac51aa6b2e653b2ea8ce1b527da5a

Introduction to independent contractors

There are advantages and disadvantages to employers using independent contractors instead of, or along with, employees. Most labor and employment laws only regulate the employer-employee relationship and therefore do not apply to independent contractors. Similarly, other laws, such as tax laws and social security laws, also make distinctions between employees and independent contractors. Because employers are required to pay certain federal, state, and local taxes on behalf of their employees, the financial benefits of having a large independent contractor workforce may be significant. This financial incentive, however, must be balanced against the substantial risks associated with misclassifying an employee as an independent contractor. It can be extremely difficult to determine what qualifies someone as an independent contractor, and the penalties for misclassification can be costly.


Adding to the confusion is a definite trend for courts as well as federal and state agencies to classify independent contractors as employees. In these situations, employers become exposed to unanticipated liabilities and penalties. Consequently, employers should consider consulting with legal counsel whenever engaging someone to work as an independent contractor. For those employers who use large numbers of independent contractors, it has become increasingly important to consider the potential ramifications of misclassifying employees as independent contractors. This chapter discusses the different tests used to classify workers as independent contractors and the agencies and regulations associated with each method.


Properly classifying workers as independent contractors

There are both advantages and disadvantages to the use of independent contractors. Because employers are required to pay certain fringe benefits and payroll taxes with respect to their employees, the financial benefits of having a large independent contractor workforce may be significant. However, it can also be extremely burdensome for employers to keep on top of exactly what qualifies someone as an independent contractor, and the penalties for misclassification can be costly.


Proper classification has taken on added importance since November 17, 2013, when New York became the 15th state to partner with the U.S. Department of Labor (DOL) in efforts to crackdown on worker misclassifications. According to a memorandum of understanding between the DOL and New York State authorities, the agencies will share data and coordinate their enforcement efforts. Employers would be prudent to conduct their own self-audits to be sure they have a legitimate basis for their classification decisions.


For an individual, being classified as an independent contractor means having the responsibility to pay both the employee and employer share of payroll taxes. These include social security taxes under the Federal Insurance Contributions Act (FICA), payroll taxes for Medicare, and taxes under the Federal Unemployment Tax (FUTA) in accordance with the Internal Revenue Code (IRC). Employees participate in employee benefit plans, while independent contractors do not. A host of other laws regulate employment practices and typically do not apply to independent contractors, including the National Labors Relations Act (NLRA), the FLSA, state workers’ compensation laws and some, but not all, employment discrimination laws.


Individuals who operate as independent contractors also have many advantages, including the ability to write off business expenses that would not be deductible on their individual tax returns, the ability to establish more generous retirement plans than an employer might offer them, and the ability to employ family members in their business and thus channel income to those in a lower tax bracket.


There is a definite trend for courts and federal and state agencies to classify those workers that an employer may deem to be independent contractors as employees. In these situations, employers become exposed to unanticipated liabilities and penalties. Therefore, especially for those employers who use large numbers of independent contractors, it has become increasingly important to consider the potential ramifications of misclassifying employees as independent contractors.


In making classification decisions, it is important to remember that not all laws define “employee” or “independent contractor” in the same way. Therefore, the same person may be an employee under one law, but an independent contractor under another. Employers certainly have good reason to complain about the difficulty of trying to comply with the law in this area.

Independent contractors & taxes

Employees’ wages are subject to withholding for federal and state income taxes. Social security and Medicare are withheld for employees only – not independent contractors. Accordingly, the Internal Revenue Service (IRS) has a strong interest in whether employees are legitimately characterized as independent contractors.


IRS's right-to-control test

With the exception of statutory employees and statutory non-employees, the IRS uses the common law right-to-control test in determining whether an individual is correctly classified as an independent contractor. The IRS works through a list of 20 factors before concluding whether the business has “the right to direct and control the means and details of the work.” Employers should similarly work through the same exercise. If the business does have that right to control, the individual will be deemed to be an employee.  The employer should keep in mind that the importance of each factor will vary depending on the type of work being done and the circumstances of the particular case. In close cases, an employer may want to consider consulting a tax professional or requesting an IRS determination of the worker’s status. Bearing this in mind, the following are the 20 factors considered by the IRS in the right-to-control test:


  1. Instructions

    Workers who must comply with the employer’s instructions as to when, where, and how to perform work are more likely to be classified as employees versus independent contractors. If the worker is required to follow very detailed instructions, this indicates that the employer retains the right to control the individual.

    Likewise, if a business passes on a customer’s instructions as to how to perform the details of the work, the business could be considered to have adopted these requirements as its own. On the other hand, if a business requires workers to comply with governmental, agency, or industry rules, the rules imposed by the business are given little weight in determining the worker’s status. Instructions may also include:

  • what tools or equipment to use


  • what workers to hire or assist with the work


  • where to purchase supplies or services


  • what sequence or order to perform the work in.


  1. Training

    The more training the worker receives under the employer’s control, the more likely it is that the worker will be classified as an employee. The underlying concept is that independent contractors should know how to perform their work and, thus, should not require training from the purchaser of their services.  Training should be distinguished from orientation about the employer’s policies and product line or programs that are voluntary.

    Orientation-type information is information that may be provided to independent contractors without jeopardizing their status.


  2. Integration

    The more important an individual’s services are to the employer’s success or continuation, the more likely it is that the individual is an employee.


  3. Services rendered personally

    Workers who must personally perform the services for which the employer pays are more likely employees. In contrast, independent contractors usually have the right to substitute other people’s services for their own in fulfilling contracts.


  4. Hiring, supervising, and paying assistants

    Workers who are not in charge of hiring, supervising, and paying their own assistants are more likely employees.


  5. Continuing relationship

    Workers who perform work for an employer for significant periods of time or at recurring intervals are more likely employees.


  6. Set hours of work

    Workers for whom employers establish set hours of work are more likely employees. In contrast, independent contractors generally can set their own work hours.


  7. Full time required

    If the employer requires the worker to be available full time, the worker is likely an employee. Independent contractors, on the other hand, can generally work whenever, and for whomever, they choose.


  8. Work done on premises

    Workers who work at the employer’s premises or at a place the employer designates are more likely employees. In contrast, independent contractors usually have their own place of business.


  9. Order or sequence set

    Workers for whom the employer sets the order or sequence in which the worker performs services are more likely employees.


  10. Oral or written reports

    Workers whom employers require to submit regular reports are more likely employees.


  11. Payment by hour, week, month

    The method of payment may provide evidence of whether the worker has the opportunity for profit or loss. Workers whom the employer pays by the hour, week, or month are more likely employees. Independent contractors are usually paid by the job.


  12. Payment of business and/or traveling expenses

    Evidence that the worker has the right to control expenses impacts the opportunity for profit or loss. Therefore, to the extent the worker experiences non-reimbursed expenses this is evidence of an independent contractor relationship. These expenses may include:

  • rent


  • training


  • advertising


  • payments to business managers and consultants


  • wages or salaries of assistants


  • insurance


  • postage and delivery


  • repairs and maintenance


  • supplies


  • travel


  • leasing of equipment.

Evidence that strongly supports an independent contractor relationship is evidence that the worker incurs fixed, ongoing expenses regardless of whether or not the work is performed. Independent contractors are also usually expected to cover their own overhead expenses.


  1. Furnishing of tools and materials

    Workers who furnish their own tools, materials, and other equipment are more likely independent contractors.


  2. Significant investment

    The greater the worker’s investment in the facilities and equipment the worker uses, the more likely it is that the worker is an independent contractor. An example of a significant investment is any type of large expenditure for equipment. However, it is not always necessary for a worker to experience a significant investment to be an independent contractor because some types of work do not require large expenditures.


  3. Profit or loss

    The greater the risk that the worker will either make a profit or suffer a loss in rendering their services, the more likely it is that the worker is an independent contractor. The opportunity for profit or loss is probably the strongest evidence that the worker controls the business aspects of the services rendered. Significant investment, non-reimbursed expenses, making services available, and method of payment are relevant in this regard. In addition, whether or not the worker is free to make business decisions that affect the worker’s profit or losses also is relevant.


  4. Working for more than one person at a time

    The more businesses for which the worker performs services at the same time, the more likely it is that the worker is an independent contractor.


  5. Making services available to the general public

    Workers who offer their services to the general public (for example, through business cards, advertisements, and other promotional items) are more likely independent contractors. However, it is not essential that a worker advertise or have a visible business location to be an independent contractor.


  6. Right to discharge

    According to IRS training materials, the right to terminate the relationship is of limited usefulness in determining the worker’s status. However, many courts have determined that termination of a worker’s relationship by either party at will is evidence of an employment relationship, whereas termination due to a specific material breach of the relationship or in connection with certain notice provisions is evidence of an independent contractor relationship.


  7. Right to quit

    Workers who can quit at any time without incurring any liability to the employer are more likely employees. In contrast, independent contractors generally cannot walk away in the middle of a project without running the risk of being financially responsible for their failure to complete the project.


IRS's determination of employee status

The IRS will determine whether a worker should be considered as an employee under the 20-factor test described previously. Employers may submit Form SS-8, Determination of Worker Status for Purposes of Federal Employment Taxes and Income Tax Withholding, in order to receive an official determination of a worker’s status. Although the IRS tends to find employee status in close cases, one advantage of using this procedure is that employers are permitted to rely on the IRS’s determination, provided that the facts have been accurately reported. A copy of the SS-8 form and its instructions can be downloaded from the IRS website at:

IRS voluntary classification settlement program

In 2011, the IRS launched a low-cost settlement program that enables employers to voluntarily reclassify their workers as employees for future tax periods. The current program, which was last modified in 2012, is available at:

The voluntary classification settlement program (VCSP) is intended to simplify the current complex worker classification rules. Under the program, eligible employers can obtain substantial relief from federal payroll taxes they may have owed in the past by making a minimal payment covering past payroll tax obligations. Participating employers can resolve their back tax liability for 10% of the employment tax liability that would have been due on compensation paid to the workers for the most recent tax year using a reduced rates section of the IRC, and will not be liable for any interest or penalties and will not be audited on worker classification issues for prior years. To be eligible, an applicant must:

  • consistently have treated the workers in the past as non-employees


  • have filed all required 1099 forms for the workers for the previous three years


  • not currently be under an employment tax audit by the IRS, or an audit concerning the classification of the workers by the DOL or a state agency.


If the IRS or the DOL has previously audited a taxpayer concerning the classification of the workers, the taxpayer will be eligible only if the taxpayer has complied with the results of that audit and is not currently contesting the classification in court. More information on the program itself can be found online at:

Statutory employees

If workers are independent contractors under the “right to control” test, such workers may nevertheless be treated as employees by statute (statutory employees) for certain employment tax purposes if they fall within one of the following four categories and all of the following conditions apply:

  • the service contract states or implies that substantially all the services are to be performed personally by them

  • they do not have a substantial investment in the equipment and property used to perform the services (other than in investment and transportation facilities)


  • the services are performed on a continuing basis for the same entity.


The four worker categories are:

  1. Drivers who distribute beverages (other than milk) or meat, vegetable, fruit, or bakery products; or who pick up and deliver laundry or dry cleaning, if they are the business’ agent or are paid on commission.


  2. Full time life insurance sales agents whose principal business activity is selling life insurance or annuity contracts, or both, primarily for one life insurance company.


  3. Individuals who work at home on materials or goods that the business supplies and that must be returned to the business or to a person named by the business, if the business also furnishes specifications for the work to be done.


  4. Full time traveling or city sales persons who work on the business’ behalf and turn in orders to the business from wholesalers, retailers, contractors, or operators of hotels, restaurants, or other similar establishments. The goods sold must be merchandise for resale or supplies for use in the buyer’s business operation. The work performed for the business must be the salesperson’s principal business activity.


And all three of the following conditions apply:

  1. the service contract states or implies that substantially all the services are to be performed personally by them


  2. they do not have a substantial investment in the equipment and property used to perform the services (other than in investment and transportation facilities)


  3. the services are performed on a continuing basis for the same entity.


Statutory non-employees

The tax code exempts certain occupations from FICA, FUTA, and employee tax withholding requirements, regardless of any contract involved or the labels attached to the parties. For an occupation to fall within the category of statutory non-employee, the worker must be a qualified real estate agent, direct seller (including newspaper carriers and distributors), or a companion sitter who meets certain IRC requirements. 


Qualified real estate agent

A worker is a qualified real estate agent if:

  • the worker is a licensed real estate agent


  • substantially all of the worker’s compensation is for services directly related to sales, rather than the number of hours worked


  • there is a written contract renouncing any employee status.


Direct seller

A direct seller is defined as a person engaged in the trade or business of selling consumer products on a buy-sell basis for resale in a place other than a permanent retail establishment. Compensation must relate to sales rather than the number of hours worked. Finally, there must also be a written contract renouncing any employee status for the individual to qualify as a direct seller.


Companion sitter

A companion sitter is an individual who furnishes personal attendance, companionship, or household care services to children or to individuals who are elderly or disabled. A companion sitter will not be treated as an employee of a companion sitting placement service if the companion placement service neither pays nor receives salary or wages earned by the sitter. However, the companion placement service may be compensated on a fee basis by the sitter or the person for whom the sitting services are performed.


Safe haven provisions

Congress has enacted a “safe haven” rule that, for some employers, can minimize their uncertainty when it comes to proper treatment of workers as employees or independent contractors for purposes of employment taxes. This rule provides that an employer cannot be penalized for its characterization of a particular worker as an independent contractor if three requirements are met:

  1. The employer has treated the worker for federal tax purposes as an independent contractor, filing all required federal tax returns with respect to the worker(s) (Forms 1099-MISC) in a manner that is consistent with the treatment of the individual as an independent contractor.

  2. The employer has consistently treated all persons holding substantially similar positions as independent contractors for federal tax filing purposes (taking into consideration the functions performed and the relationship between the taxpayer and the workers).


  3. The employer must have had a reasonable basis for treating the worker as an independent contractor. Factors an employer may rely on for its reasonable basis are:

  • judicial precedent, published rulings, technical advice with respect to the taxpayer, or a letter ruling to the taxpayer


  • a past audit by the IRS in which there was no assessment for the employer’s treatment of workers holding positions substantially similar to the position held by the worker in question


  • long standing, recognized practice of a significant segment of the industry in which the individual works.


Wages, hours & benefits

The Fair Labor Standards Act (FLSA) regulates wage and overtime requirements for employees.  See Wages and hours. The FLSA defines an employee very broadly as “any individual employed by an employer.” Given this vague definition, state and federal courts have typically applied the economic realities test in determining a worker’s status under the FLSA.


Economic realities test

The economic realities test generally revolves around the amount of monetary risk the workers have in the job (in other words, if the workers can finish the job with a monetary loss, then they will typically be considered to be independent contractors). Although the economic realities test focuses on the workers’ monetary risk, the courts also look to whether the employees have the right to control how the work is performed. Therefore, both economic reality and the right to control are relevant (IRS’s right to control test).


In applying the economic realities test, the courts look to the following factors:

  • employer’s control of the worker’s duties


  • employer’s payment of wages


  • employer’s right to hire, discharge, and discipline


  • worker’s opportunity for profit or loss


  • worker’s investment in equipment or materials


  • permanency of worker/employer relationship


  • skill level required for work


  • whether the work is an integral part of the employer’s business.


Some courts refer to this test as the hybrid test (particularly in the employment discrimination context), while others continue to call it the economic realities test. As part of the economic realities test, the courts look to the circumstances of the whole activity and not any one of the aforementioned factors.


Independent contractors - benefits

The Employee Retirement Income Security Act of 1974 (ERISA) was enacted to safeguard employee benefit plans, such as pension, profit-sharing, and health insurance plans.  The classification of a worker as an independent contractor or employee determines that individual’s coverage under ERISA. If the worker is an employee, then he/she is protected by ERISA, but if the employee is an independent contractor, then no such protection exists.


Common law agency test

ERISA uses the common law agency approach to determine whether an individual is an employee. In 1992, the Supreme Court set forth standards to be used to determine whether a person is an employee for purposes of ERISA. The Supreme Court found that in determining whether an individual is an employee, the hiring party’s right to control the manner and means by which the product is accomplished should be considered.

Among the factors relevant to this inquiry are:

  • skill required


  • source of the instrumentalities and tools


  • location of the work


  • duration of the relationship between the parties (the longer the duration of the relationship, the more likely the worker is an employee)


  • whether the hiring party had the right to assign additional projects to the hired party


  • the extent of the hired party’s discretion over when and how long to work


  • method of payment


  • the hired party’s role in hiring and paying assistants


  • whether the work is part of the regular business of the hiring party


  • whether the hiring party is in business


  • provision of employee benefits


  • tax treatment of the hired party.

Discrimination & union activity

Federal anti-discrimination laws, such as the Age Discrimination in Employment Act (ADEA), the Americans with Disabilities Act (ADA), and Title VII of the Civil Rights Act of 1964 (Title VII), only apply to employees. By contrast, the Rehabilitation Act, which has some provisions that are quite similar to the ADA, has been held by courts to extend beyond the employer-employee relationship to cover independent contractors. Typically, courts apply a hybrid test to determine the worker’s status under the ADEA, the ADA, and Title VII.


Hybrid test

The hybrid test is a combination of the economic realities test and the basic right to control test. Under this test, courts focus on the right to control, but also take economic realities into consideration as needed and look at the following factors to determine the worker’s status under the ADEA, the ADA, and Title VII:

the kind of occupation, with reference to whether the work usually is done under the direction of a supervisor or is done by a specialist without a supervisor

  • the skill required in the particular occupation


  • whether the employer or the individual in question furnishes the equipment used and the place of work


  • the length of time during which the individual has worked


  • the method of payment, whether by time or by the job


  • the manner in which the work relationship is terminated (for example, by one or both parties, with or without notice and explanation)


  • whether annual leave is afforded


  • whether the work is an integral part of the business of the employer


  • whether the worker accumulates retirement benefits


  • the intention of the parties.


Section 1981 claims of racial discrimination

Employers should be aware that although independent contractors are not covered under the anti-discrimination laws set forth previously, they are protected under Section 1981 of the Civil Rights Act of 1866, as amended by the Civil Rights Act of 1991. As originally enacted, Section 1981 provided that “all persons within the jurisdiction of the United States shall have the same right in every state and territory to make and enforce contracts, to sue, to be parties to, to give evidence, and to the full and equal benefits of all laws and proceedings for the security of persons and property as is enjoyed by white citizens…”  In 1991, Congress amended the act by adding language that made clear that this statute encompasses all aspects of how contracts are administered.


As a result of findings by the courts in lawsuits involving race discrimination claims by independent contractors, employers should be aware that they will not necessarily prevail on race discrimination or harassment cases just because they can successfully argue that the worker at issue was an independent contractor. 


Independent contractors & union activity

The NLRA protects workers against unfair labor practices and allows them to organize or support labor organizations without fear of recrimination by the employer. The NLRA specifically excludes from its definition “any individual having the status of independent contractor.” The NLRA will first apply a common law agency principle to determine whether the individual should be excluded as an independent contractor within the meaning of the NLRA.


Although there is no shorthand formula associated with the test, the National Labor Relations Board (NLRB) has described the following factors as significant:

  • the extent of control that, by the agreement, the employer may exercise over the detail of the work


  • whether the worker is engaged in a distinct occupation or business


  • the kind of occupation and whether it is typically done under the direction of the employer


  • skill required in the particular occupation


  • whether the employer supplies the facilities, tools, materials, or supplies for the worker


  • length of time for which the worker is hired


  • method of payment


  • whether the work is a part of the employer’s regular business


  • whether the parties believe they are creating a master-servant relationship


  • the worker’s opportunity to generate a profit or loss (in other words, entrepreneurial risk)


  • whether the principal remains in business.


The NLRB also notes that the previous factors should not be applied uniformly. Instead, the NLRB gave the following explanation as to how they should be applied:

  • The total factual context of any relationship must be reviewed in light of relevant common law principles. No one factor is decisive. The same set of factors that are relevant in one case may be unpersuasive when balanced against a different set of opposing factors in another case. In other words, it is very difficult to rely on the weight given to a certain factor in one case.


  • Of course, this kind of test gives very little guidance to an employer that is trying to understand and comply with the law because the analysis will always be after the fact and in the context of an adversary proceeding. Finally, it is the existence of the right to control that is significant, irrespective of whether that right to control actually exercised.

Unemployment & workers' compensation

Virginia employers are not obligated to pay unemployment taxes for independent contractors, and independent contractors may not receive unemployment benefits if their services are terminated. As set forth previously, the test employed by the Virginia Employment Commission (VEC) to determine whether a worker is an employee or an independent contractor is the IRS’s 20 factor test. Employers always bear the burden of proving the worker was not an employee and therefore not entitled to unemployment benefits.


Independent contractors & workers' compensation

Whether an individual is an employee or an independent contractor will determine if the individual is entitled to workers’ compensation benefits required by the Virginia Workers’ Compensation Act.  If the worker is determined to be an employee and has a work related injury, the employer may be responsible for payment of weekly benefits, healthcare expenses, and other benefits.  If the worker is determined not to be an employee, then the employer is not required to provide the benefits. In Virginia, however, an independent contractor may be included in the Workers’ Compensation Act coverage provided that the parties agree to such an inclusion and the employer’s insurer agrees in writing to such inclusion.  In such a situation, all or part of the cost of the insurance coverage of the independent contractor may be borne by the independent contractor.


Small companies (with three or fewer employees) that use independent contractors should carefully analyze whether their independent contractors are properly classified. Employers employing more than three employees are required to purchase a workers’ compensation insurance policy.  While an employer may elect to self-insure, if an employer is self-insured and the worker is determined to be an employee, then the employer itself must pay the benefits.  The failure to obtain workers’ compensation insurance when needed is considered a Class 2 misdemeanor under Virginia law.


The Virginia Workers’ Compensation Act broadly defines employee to mean “every person, including aliens and minors, in the service of another under any contract of hire or apprenticeship, written or implied, whether lawfully or unlawfully employed.”


This definition includes:

  • apprentices


  • members of the Virginia National Guard


  • members of the Virginia Defense Force


  • registered members of the U.S. Civil Defense Corps


  • officers and employees of the Commonwealth


  • executive officers, including president, vice president, secretary, treasurer. or other officer of a corporation


  • managers of a limited liability company


  • policemen and firefighters, sheriffs and their deputies, town sergeants and their deputies, county and city commissioners of revenue, county and city treasurers, attorneys for the Commonwealth, clerks of circuit courts and their deputies, officers and employees, and electoral board members


  • members of the governing body of any county, city, or town in the Commonwealth


  • volunteers, officers, and employees of any commission or board of any authority created or controlled by a local governing body


  • volunteer firefighters, volunteer lifesaving or rescue squad members, volunteer law enforcement chaplains, auxiliary or reserve police, auxiliary or reserve deputy sheriffs, volunteer emergency medical technicians, members of volunteer search and rescue organizations, volunteer members of regional hazardous materials emergency response teams, volunteer members of community emergency response teams, and volunteer members of medical reserve corps


  • any sole proprietor, shareholder of a stock corporation having only one shareholder, or member of a limited liability company having only one member


  • the legal representatives or dependents of persons covered by the act


  • jail officers and jail superintendents


  • AmeriCorps members


  • food stamp recipients participating in the work experience component of the "food stamp employment and training program"


  • temporary assistance for needy families’ recipients not eligible for Medicaid participating in the work experience component of the Virginia initiative for employment not welfare program.


Under the act, the definition of “employee” does not include one whose employment is not in the usual course of the trade, business, occupation, or profession of the employer.

The act also specifically provides that the following are not employees:

  • elected officers and employees of the Commonwealth who are elected by the general assembly, or appointed by the governor


  • elected officers and employees of municipal corporations and political subdivisions


  • licensed real estate salespersons or brokers


  • taxicab or executive sedan drivers


  • casual employees


  • domestic servants


  • farm and horticultural laborers, unless the employer regularly has in service more than three full time employees


  • employees of any employer with three or fewer employees


  • employees of any common carrier by railroad engaging in interstate commerce


  • non-compensated employees and non-compensated directors of certain tax-exempt corporations


  • certian sports officials