Employee or Independent Contractor?

When determining whether your workers are employees or independent contractors, there are several factors you must consider.  The traditional test to determine a worker’s status involves the concept of control.  The IRS developed 20 factors to resolve a worker’s status as an independent contractor under the common law.  The burden of proof is also on the taxpayer.  It is understood that at least 11 of these factors should present evidence of an independent contractor’s status under the common law tests.

For the following questions, answering “yes” means the worker is an employee.

1. Instruction. Does the principal provide instruction to the worker about when, where, and how he or she is to perform the work?
2. Training. Does the principal provide training to the worker?
3. Business Operations. Are the services provided by the worker integrated into the principal’s business operations?
4. Exclusivity. Must the services be rendered personally by the worker?
5. Control of Assistants. Does the principal hire, supervise and pay the worker’s assistants?
6. Continuity. Is there a continuing relationship between the principal and the worker?
7. Schedule. Does the principal set the work hours and schedule?
8. Availability to Others. Does the worker devote substantially full time to the business of the principal?
9. Location. Is the work performed on the principal’s premises?
10. Directions. Is the worker required to perform the services in an order or sequence set by the principal?
11. Reporting. Is the worker required to submit oral or written reports to the principal?
12. Pay Frequency. Is the worker paid by the hour, week, or month?
13. Discharge at will. Does the principal have the right to discharge the worker at will?
14. Termination. Can the worker terminate his or her relationship with the principal any time he or she wishes without incurring liability to the principal?
15. Reimbursement of Expenses. Does the principal pay the business or traveling expenses of the worker?

For the following questions, answering “yes” means the worker is an independent contractor.

1. Tools. Does the worker furnish his/her own significant tools, materials and equipment?
2. Investment. Does the worker have a significant investment in facilities?
3. Profit or Loss. Can the worker realize a profit or loss as a result of his or her services?
4. Other Clients. Does the worker provide services for more than one firm at a time?
5. Availability. Does the worker make his or her services available to the general public?

Keep in mind that if you are found misclassifying an employee, you could face substantial penalties.  This post is intended to give the reader an overview.  It should not be taken as legal or accounting advice.  Seek our personalized, professional advice to guide you through the intricacies of tax matters.  Call us today for a business consultation 678-608-2775 .

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Bernadette L. Harris
Forensic Accountant at By The Book Accounting
Bernadette L. Harris is a Forensic Accountant, Certified Fraud Examiner, Expert Witness, Keynote Speaker, and #1 bestselling author who has helped hundreds of business owners put systems in place to protect their businesses and prepare for growth.

Her latest books, Business Blueprint 2.0 and Did You Hire a Fraud? can be purchased at: Shop.BernadetteHarris.com.

She speaks to audiences across the country about entrepreneurship and fraud prevention. Follow her on social media @TrustBernadette

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