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.
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.
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.
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:
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.
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:
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:
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:
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
The four worker categories are:
And all three of the following conditions apply:
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.
A worker is a qualified real estate agent if:
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.
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.
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:
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.
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.
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:
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.
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.
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:
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.
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
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.
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 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:
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.
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:
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: