Independent Contractor of Employee? How To Tell The Difference

Armen Hareyan's picture

Independent Contractor

Classifying workers appropriately is an important risk management activity for any business. The Colorado Society of CPAs points out that employers who misclassify employees as independent contractors may find themselves liable for back payments of employment taxes in addition to stiff penalties and interest payments. In some cases, an employer could be required to provide retroactive benefits, such as vacation pay and retirement plan contributions, to a misclassified worker.

An IRS investigation of a firm's worker classifications can result from either a random audit of the firm or from a triggering event. For example, a worker applying for unemployment benefits or filing a Worker Compensation claim could challenge his or her classification. To protect your business, it's important to understand how the IRS classifies employees and independent consultants.

Level of control is a key factor

There is no single, clear-cut test for classifying workers as independent contractors or employees. However, level of control is a key factor. According to the IRS, a worker is an employee if the company he or she works for has the right to control when, where, and how to do the assigned task. Independent contractors are not "controlled" by the companies that hire them. Although the firm decides what needs to be done and the due date, it is up to the independent contractor to decide the means by which the job is accomplished. Contractors typically work for a number of different companies and may hire others to work on the assignment. Employees, on the other hand, usually work for one employer and have set hours of work.


The 20-factor test

While the most important factor is control, the IRS uses a list of 20 factors to determine a worker's status. According to this list, the following are characteristics of independent contractors: setting their own work hours; furnishing their own tools; not receiving training from the hiring firm; working for more than one firm at a time; being paid by the job rather than by the hour; not providing progress reports; making their services available to the general public; and paying for their own business and travel expenses. No single factor is determinative. They can carry different weights, and the IRS applies them on a case-by-case basis. For more information, refer to IRS Publication 15-A, Employer's Supplemental Tax Guide. It is available through the IRS Web site.

Safe harbor rule offers some protection

There is an IRS Section 530 "safe harbor" rule that exempts some workers from the 20-factor test. To qualify, the hiring company must meet all three of the following requirements: (1) the company has a reasonable basis for classifying the workers as independent contractors; (2) the company has consistently treated these and all similar workers as independent contractors in the past; and (3) the company has consistently filed Form 1099-MISC information returns for these and all similar workers.

Seeking professional advice is critical

If after reviewing the 20 factors, you are