|
The Internal Revenue Service has developed the following 20 factors to help determine
workers' status. These factors are not intended to provide a conclusive determination of a
workers' status. The test should be used only as a guide.
The more factors indicating control, the more likely the worker must be classified as an
employee rather than as an independent contractor. No one factor is outcome determinative.
All of the factors should be weighed to determine the degree of control exercised by the
university over the worker and his or her activities.
1. Instructions
A worker who is required to comply with another person's instructions about when, where,
and how he or she is to work is ordinarily an employee. This control factor is present if
the person for whom the services are performed has the right to require compliance with
instructions. The more control the worker has in determining how, when, and where to
perform the services and discretion in the manner in which the services are performed,
the more likely he or she will be considered an independent contractor.
2. Training
Training a worker by requiring an experienced employee to work with the worker, by requiring
the worker to attend meetings, or by using other similar methods, indicates that the person
for whom the services are performed wants the services performed in a particular method or
manner. This would favor characterizing the worker as an employee.
3. Integration
Integration of the worker's services into the business operations generally shows that the
worker is subject to direction and control. When the success or continuation of a business
depends to an appreciable degree upon the performance of certain services, the workers who
perform those services must necessarily be subject to a certain amount of control by the
owner of the business.
4. Services Rendered Personally
If the services must be rendered personally (i.e., for another individual as opposed to a
corporation or firm), presumably the person for whom the services are performed is
interested in the methods used to accomplish the work as well as in the results. The more
emphasis on the manner or method, the more likely the worker will be classified as an
employee.
5. Hiring, Supervising, and Paying Workers
If the person for whom the services are performed hires, supervises, and pays assistants,
that factor generally shows control over the workers on the job. However, if one worker
hires, supervises, and pays the other assistants in accordance with a contract under which
the worker agrees to provide materials and labor and under which the worker is responsible
only for the attainment of a result, this factor indicates independent contractor status.
6. Continuing Relationship
A continuing relationship between the worker and the person for whom the services are
performed indicates that an employer-employee relationship exists. A continuing relationship
may exist where work is performed at frequently recurring although irregular intervals. For
long-term arrangements, this factor is often unavoidable.
7. Set Hours of Work
The establishment of set hours of work by the person for whom
the services are performed is a factor indicating control and, therefore, indicates the
presence of an employer-employee relationship.
8. Full Time Required
If the worker must devote substantially full time to the
business of the person for whom the services are performed that person has control over the
amount of time the worker spends working and impliedly restricts the worker from doing other
gainful work. An independent contractor, on the other hand, is free to work when and for
whom he or she chooses.
9. Doing Work on Employer's Premises
If the work is performed on the premises of the person for whom the services are performed,
that factor suggests control over the worker, especially if the work could be done
elsewhere. Work done off the premises of the person receiving the services such as at the
office of the worker, indicates some freedom from control. However, this fact by itself
does not mean that the worker is not an employee. The importance of this factor depends on
the nature of the services involved and the extent to which an employer generally would
require that employees perform such services on the employer's premises. Control over the
place of work is indicated when the person for whom the services are performed has the
right to compel the worker to travel a designated route, to canvass a territory within a
certain time, or to work at specific places on specific dates or at specific times.
10. Order of Sequence Set.
If a worker must perform services in the order or sequence set by the person for whom the
services are performed, this indicates that the worker is not free to follow his or her own
pattern of work, but must follow the established routines and schedules of the person for
whom the services are performed. Often, because of the nature of an occupation, the person
for whom the services are performed does not set the order of the services or sets the order
infrequently. It is sufficient to show control, however, if the right to direct the order
or frequency of performing a task is retained.
11. Oral or Written Reports
A requirement that the worker submit regular written reports to the person for whom the
services are performed indicates a degree of control.
12. Payment by Hour, Week, Month
Payment by the hour, week, or month generally points to an employer-employee relationship.
If payment by the month or week is just a convenient way of paying a lump sum agreed upon
as the cost of a job, then it is possible to mitigate this factor. Payment made by the job
or on a straight commission generally indicates that the worker is an independent contractor.
13. Payment of Business and/or Traveling Expenses
If the person for whom the services are performed ordinarily pays the workers business
and/or traveling expenses, the worker is ordinarily an employee. An employer, to he able to
control expenses, generally retains the right to regulate and direct the workers business
activities. Independent contractors usually pay their own insurance and health benefits
costs (including workers' compensation insurance), which indicates that they are incurring
expenses personal to them.
14. Furnishing of Tools and Materials
The fact that the person for whom the services are performed furnishes significant tools,
materials, and other equipment tends to show the existence of an employer-employee
relationship.
15. Significant Investment
If the worker invests in facilities that are used by him in performing services which are
not typically maintained by employees (such as the maintenance of an office rented at fair
value from an unrelated party), this tends to indicate that the worker is an independent
contractor. On the other hand, lack of investment in facilities indicates dependence on the
person for whom the services are performed and, therefore, the existence of an
employer-employee relationship. Special scrutiny is required with respect to certain types
of facilities, such as home offices.
16. Realization of Profit or Loss
A worker who can realize a profit or suffer a loss as a result of the worker's services
(in addition to the profit or loss ordinarily realized by employees) is generally an
independent contractor, but the worker who cannot is an employee. For example, if the worker
is subject to a real risk of economic loss due to significant investments or a bonafide
liability for expenses, such as salary payments to unrelated employees, that factor
indicates that the worker is an independent contractor. The risk that a worker will not
receive payment for his or her services, however, is common to both independent contractors
and employees and, thus, does not constitute a sufficient economic risk to support treatment
as an independent contractor.
17. Working for More than One Firm at a Time
If a worker performs more than minimal services for multiple, unrelated persons or firms
at the same time, that factor generally indicates that the worker is an independent
contractor. However, worker who performs services for more than one employer may he an
mployee of each employer especially where the employers are part of the same service
arrangement.
18. Making Services Available to General Public
The fact that a worker makes his or her services available to the general public on a
regular and consistent basis indicates an independent contractor relationship.
19. Right to Discharge
The right to discharge worker is a factor indicating that the worker is an employee and the
person possessing the right is an employer. An employer exercises control through the
threat of dismissal. which causes the worker to obey the employers instructions. An
independent contractor, on the other hand, cannot be fired as long as the independent
contractor produces a result that meets the contract specifications.
20. Right to Terminate
If the worker has the right to end his or her relationship with the person for who the
services are performed at any time he or she wishes without incurring liability, that
factor indicates and employer-employee relationship.
Source Quoted: Louisiana Employment Law Letter
|
