Independent Contractors or Employees

WHY DOES IT MATTER?IRS requires withholding, etc., from W-2 employees.Employer pays Social Security and Medicare tax (FICA) for employees.Many employment related statutes apply to employees but not to contractors.Department of Labor enforces FLSA requirements with regard to employees.Employer liability is more likely for employees than for contactors, e.g, for torts.Wage payment statutes apply to employees.Misclassification can be a very expensive mistake.2Copyright 2011, Kenneth A. Sprang

INTERNAL REVENUE CODEPrivate sector and government employers required to withhold FICA and income tax from employees.Some variation with regard to FICA onlyNo withholding required for independent contractors4Copyright 2011, Kenneth A. Sprang

FICA ExceptionsEmergency Workers: Temporary workers hired in case of fire, storm, snow, earthquake, flood, or other emergency are excluded from social security and Medicare payments. Permanent employees who work regularly in response to emergencies are not exempt if they are in fact employees. Election Workers: Election workers are employees. However, they are excepted from payment of FICA if they earn less than a specified amount for a calendar year ($1,500 for 2011). This rule may be modified by a Section 218 Agreement. Medical Residents: Medical residents are generally considered employees of the hospital where they work. However, under enrolled students who work less than full-time and for whom education, not employment, is the primary purpose of the relationship, may be excepted from FICA.Exceptions address FICA—workers may still be employees and subject to FLSA.5Copyright 2011, Kenneth A. Sprang

FAIR LABOR STANDARDS ACTEmployees entitled to minimum wageNon-exempt employees entitled to one and one-half times base rate for overtimeGovernment employees may use comp time rather than extra pay6Copyright 2011, Kenneth A. Sprang

Examples of ChallengesExample 1Pet sitter franchisee can operate successfully with independent contractors, but cost of employees is prohibitive.State decides contractors are employees; requires contractors to set up their own LLCExample 2Government agency budgets for contractors, without thought to overtime, benefits, etc.Worker determined to be an employee and costs could break the budget9Copyright 2011, Kenneth A. Sprang

Gotham City Staffing CompanyGotham City Staffing Company hires Chris Villareal as a computer programmer to provide services to its client Web 5.0. Chris has a contract with Gotham for less than one year.Gotham provides temporary technical staff, and Chris is one of several persons assigned to Web 5.0Chris is at Web 5.0 full time, most of the time working on Web’s premises. He reports hours and progress to Gotham regularly and is paid by Gotham.Gotham gets regular reports from Web 5.0 regarding Chris’ work and evaluates him based on that work. If either Web or Gotham were dissatisfied, Chris’ could be terminated.Chris’ contract with Gotham prohibits his working directly for Gotham during the term of the agreement and for a period of three months following termination of the agreement with Gotham. Contractor or employee?11Copyright 2011, Kenneth A. Sprang

IRS 20 FACTOR TESTFactor No. 1. Control and Direction. Who determines when, where, and how the worker is to work? Can worker be required to comply with instructions?Factor No. 2. Training. Must the worker work with an experienced employee, attend meetings or otherwise be instructed that the employer wants the services performed in a particular method or manner. Factor No. 3. Integration. Does the business depend to appreciable degree upon services provided by the worker? Are worker’s services generally integrated into the business operations?Factor No. 4. Personally Rendered Services. Must the services be rendered personally by the worker? 13Copyright 2011, Kenneth A. Sprang

FACTORS 5 - 8Factor No. 5. Hiring, Supervising, and Paying Assistants. Who hires, supervises, and pays assistants to the worker? Factor No. 6. Continuing Relationship. Is the relationship between the employer and the worker continuing one? Factor No. 7. Hours of Work. Who determines the workers schedule and hours and days of work?Factor No. 8 Time Required. Does the worker work substantially full time for the employer?14Copyright 2011, Kenneth A. Sprang

FACTORS 9 - 12Factor No. 9. Location of Work. Where must the worker work to provide services? Is work done onsite or offsite? Factor No. 10. Sequence. Must worker perform services in the order or sequence designated by employer.? Factor No. 11. Required Reports. Must worker submit regular or written reports to employer? Factor No. 12. Payment Pattern.. Is worker paid by the hour, week, or month or in a lump sum (even if conveniently broken into periodic payments? 15Copyright 2011, Kenneth A. Sprang

FACTORS 13-16Factor No. 13 Expenses. Who pays for worker’s expenses?Factor No. 14 Tools and Materials. Who provides worker’s tools and materials?Factor No. 15. Facilities Does worker have his own facilities obtained and maintained at the worker’s expense, or does he rely on the employer’s facilities and resources?Factor No. 16. Profit or Loss. Is worker at risk for profit or loss, for example, as a result of expenses, obligation to pay others. 16Copyright 2011, Kenneth A. Sprang

FACTORS 17-20Factor No. 17. Single or Multiple Firms. Does the worker work for a single company or for multiple companies?Factor No. 18. Market for Services. Were worker’s services available to general public? Factor No. 19. Termination by Employer. Does the employer have the right to terminate the worker’s employment? Factor No. 20. Termination by Worker. Can worker terminate the relationship without liability?17Copyright 2011, Kenneth A. Sprang

New IRS FactorsBehavior ControlInstructions the business gives the worker. Training the business gives the worker.Financial Control The extent to which the worker has unreimbursed business expenses. The extent of the worker's investment. The extent to which the worker makes services available to the relevant market. How the business pays the worker. The extent to which the worker can realize a profit or loss. 18Copyright 2011, Kenneth A. Sprang

New IRS FactorsType of RelationshipWritten contracts describing the relationship the parties intended to create. Whether the business provides the worker with employee-type benefits, such as insurance, a pension plan, vacation pay, or sick pay. The permanency of the relationship. The extent to which services performed by the worker are a key aspect of the regular business of the company. 19Copyright 2011, Kenneth A. Sprang

IRS DEFINITION OF INDEPENDENT CONTRACTORThe general rule is that an individual is an independent contractor if the person for whom the services are performed, has the right to control or direct only the result of the work and not the means and methods of accomplishing the resultExamples. People such as lawyers, contractors, subcontractors and auctioneers who follow an independent trade, business, or profession in which they offer their services to the public, are generally not employees, though whether such people are employees or independent contractors depends on the facts in each case.20Copyright 2011, Kenneth A. Sprang

ExampleVera Elm, an electrician, submitted a job estimate to a housing complex for electrical work at $16 per hour for 400 hours. She is to receive $1,280 every 2 weeks for the next 10 weeks. This is not considered payment by the hour. Even if she works more or less than 400 hours to complete the work, Vera Elm will receive $6,400. She also performs additional electrical installations under contracts with other companies that she obtained through advertisements. Vera is an independent contractor21Copyright 2011, Kenneth A. Sprang

IRS DEFINITION OF EMPLOYEEAnyone who performs services for another is an employee if the recipient of the services can control what will be done and how it will be done. This is so even when the putative employer gives the employee freedom of action. What matters is that the putative employers has the right to control the details of how the services are performed.22Copyright 2011, Kenneth A. Sprang

ExampleExample: Donna Lee is a salesperson employed on a full-time basis by Bob Blue, an auto dealer. She works 6 days a week, and is on duty in Bob's showroom on certain assigned days and times. She appraises trade-ins, but her appraisals are subject to the sales manager's approval. Lists of prospective customers belong to the dealer. She has to develop leads and report results to the sales manager. Because of her experience, she requires only minimal assistance in closing and financing sales and in other phases of her work. She is paid a commission and is eligible for prizes and bonuses offered by Bob. Bob also pays the cost of health insurance and group-term life insurance for Donna. Donna is an employee of Bob Blue.23Copyright 2011, Kenneth A. Sprang

STATUTORY EMPLOYEESWorkers who are independent contractors under common law rules, may nevertheless be treated as employees by statute (statutory employees) for certain employment tax purposes if they fall within any one of the following four categories and meet conditions related to Social Security and Medicare taxes.A driver who distributes beverages (other than milk) or meat, vegetable, fruit, or bakery products; or who picks up and delivers laundry or dry cleaning, if the driver is your agent or is paid on commission.A full-time life insurance sales agent whose principal business activity is selling life insurance or annuity contracts, or both, primarily for one life insurance company.An individual who works at home on materials or goods that you supply and that must be returned to you or to a person you name, if you also furnish specifications for the work to be done.Certain traveling or city salespersons24Copyright 2011, Kenneth A. Sprang

SOCIAL SECURITY AND MEDICARE TAXESWithhold Social Security and Medicare taxes from the wages of statutory employees if all three 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 an investment in transportation facilities).The services are performed on a continuing basis for the same payer.There is no exception for government employees other than by agreement between the State and the IRS or a statutory or regulatory exception.25Copyright 2011, Kenneth A. Sprang

STATUTORY NONEMPLOYEESThere are generally two categories of statutory nonemployees: direct sellers and licensed real estate agents. They are treated as self-employed for all Federal tax purposes, including income and employment taxes, if:Substantially all payments for their services as direct sellers or real estate agents are directly related to sales or other output, rather than to the number of hours worked, andTheir services are performed under a written contract providing that they will not be treated as employees for Federal tax purposes.26Copyright 2011, Kenneth A. Sprang

EEOC CRITERIA FOR EMPLOYEESThe employer has the right to control when, where, and how the worker performs the job.The work does not require a high level of skill or expertise.The employer furnishes the tools, materials, and equipment.The work is performed on the employer's premises.There is a continuing relationship between the worker and the employer.The employer has the right to assign additional projects to the worker.The employer sets the hours of work and the duration of the job.The worker is paid by the hour, week, or month rather than the agreed cost of performing a particular job.The worker does not hire and pay assistants.28Copyright 2011, Kenneth A. Sprang

EEOC CRITERIA FOR EMPLOYEES (2)The work performed by the worker is part of the regular business of the employer.The employer is in business.The worker is not engaged in his/her own distinct occupation or business.The employer provides the worker with benefits such as insurance, leave, or workers' compensation.The worker is considered an employee of the employer for tax purposes (i.e., the employer withholds federal, state, and Social Security taxes).The employer can discharge the worker.The worker and the employer believe that they are creating an employer-employee relationship29Copyright 2011, Kenneth A. Sprang

ADDITIONAL EEOC CRITERIA FOR FEDERAL EMPLOYEES Whether annual leave is affordedWhether the worker accumulates retirement benefits Whether the employer pays social security taxesThe intention of the parties30Copyright 2011, Kenneth A. Sprang

ADDITIONAL AREAS OF CONCERNWorkers CompensationOvertime pay and minimum wage under FLSAEmployee benefitsIntellectual property(works for hire)Liability, e.g., respondeat superior32Copyright 2011, Kenneth A. Sprang

COMMON LAWEmployee. An employee (servant) is an agent employed by an employer (master) to perform service in his affairs whose physical conduct in the performance of the service is controlled or is subject to the right to control by the employer (master).Independent Contractor. An independent contractor is a person who contracts with another to do something for him but who is not controlled by the other nor subject to the other's right to control with respect to his physical conduct in the performance of the undertaking. He may or may not be an agent.33Copyright 2011, Kenneth A. Sprang

SUPREME COURT’S VIEW"In determining whether a hired party is an employee under the general common law of agency, we consider the hiring party's right to control the manner and means by which the product is accomplished.Among the other factors relevant to this inquiry are the skill required; the source of the instrumentalities and tools; the location of the work; the duration of the relationship between the parties; whether the hiring party has 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; the 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; the provision of employee benefits; and the tax treatment of the hired party.“ Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 31834Copyright 2011, Kenneth A. Sprang

LEASED EMPLOYEESDefinitions. Workers who are officially employed by a professional employer organization, which is responsible for overseeing all HR-related functions, but who actually perform all work for your company.Contractual arrangement between employer and the leasing company—the professional employer organization (PEO). Employment responsibilities shared between the PEO and the employer. Business retains essential management control over work performed by the employees. PEO assumes responsibility for administrative tasks.Employer pays PEO to cover the payroll, taxes, benefits and administrative fees. 36Copyright 2011, Kenneth A. Sprang

LEASED EMPLOYEES (2)Allows employer to add workers without adding administrative complexity. By combining the employees of several companies into one large pool, PEOs can often offer business owners better rates on health-care and workers' compensation coverage, saving time and money.Helpful for discrete area of business, e.g., HR, financeNOTE: Employer and PEO may be deemed joint employers.37Copyright 2011, Kenneth A. Sprang

TEMPORARY EMPLOYEESEmployees hired for finite period of time or for an unknown period, but with no intention of long term employment.Generally like any other employee, e.g., withholding required.Often receive no benefits, no paid time off, etc.38Copyright 2011, Kenneth A. Sprang

INDEPENDENT CONTRACTORSBusiness does not control the day to day functions of the contractor.Contractor pays own expenses (though may charge business).Contractor generally controls when and where he/she works, though nature of work may require onsite presence.Contractor typically paid flat fee or agreed upon hourly rate or time and materials.Examples: IT staff, lawyers, contractors, security staff.39Copyright 2011, Kenneth A. Sprang

DRAFTING SUGGESTIONS: THE RELATIONSHIPRelationship of Parties. The relationship of the parties hereto is that of independent contracting parties and will not be deemed to be any other relationship including, without limiting the generality of the foregoing, that of joint venturers, partners, joint employers or principal and agent. Although this Agreement contains covenants with respect to confidential information, the parties disclaim any other intent to create a special, confidential or fiduciary relationship between them. Inasmuch as Consultant is an independent contractor Consultant will have no authority to hire any person on behalf of the Company.Any persons performing Services for Consultant are solely personnel of Consultant (as defined in Section 7 of this Agreement) or its Subcontractors (as defined in Section 8); and Consultant, as an independent contractor, will have full and exclusive control over the means, manner, methods, and sequence by which it renders the Services under this Agreement. 41Copyright 2011, Kenneth A. Sprang

DRAFTING SUGGESTIONSClearly specify scope of work, so each party knows what is expected. May wish to attach detailed scope of work.Indemnification clausesConfidentialityOwnership of work productRestrictions on subcontractorsReserve right to disapprove of onsite staffNon-competition provisionTermination provisionsRepresentations and warranties by ContractorApplicable lawFees42Copyright 2011, Kenneth A. Sprang

SELF AUDITSEvaluate any person treated as independent contractorDetermine whether any employees are actually contractorsApply IRS 20 factorsUse SS-8 if in doubtLook carefully at amount of control employer exercises45Copyright 2011, Kenneth A. Sprang

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Independent Contractors or Employees