Employee vs. contractor: Here we go again.

Why revisit this issue now?

Several years ago, I wrote an extensive article on the ten most important tests of a company in classifying a person as an independent contractor.  See https://berkonomics.com/?p=662 for that important insight.  But things have gotten much more complicated over the years, partly because of the Uber, Lyft and other new generation of GIG workers and the best description of their class as “semi–independent.”

Enter the Department of Labor…

But now we must weigh in with the U.S. Department of Labor definitions as well as the Internal Revenue Service and try to make sense of the mix.  So here goes:

The Department of Labor (in its Fact Sheet #13) lists six classes of test for independent contractors:

  1. The extent to which the work performed is an integral part of the employer’s business. (If high, then employee.)
  2. Whether the worker’s managerial skills affect his or her opportunity for profit or loss. (If high, then employee.)
  3. The relative investments in facilities and equipment by the worker and the employer. (If worker is even remotely high, then independent.)
  4. The worker’s skill an initiative. (If initiative high and unsupervised, then independent.)
  5. The permanency of the worker’s relationship with the employer. (If high, then employee.)
  6. The nature and degree of control by the employer. (If rules are great and control is high, then employee.)

The IRS guidelines cover the same principles, but…

[Email readers, continue here…]

The IRS combines these into three basic classes to test that relationship and classify the person in question.

  1. Behavioral control: Does the employer have the right to direct or control how the work is performed through instructions, training or other means? (If yes, then employee.)
  2. Financial control: Does the business have the right to direct or control the financial and business aspects of the worker’s job? (If yes, then employee.)
  3. Type of relationship: How does the worker and the business perceive their relationship? (More difficult. If each considers this a contract, there should be documentation, but that would lean toward independent contractor.)

And the IRS has many more tests within this grouping. (See my article referenced at the beginning of this for those.)

Is there a “pre-determine test for independent contractor status?

The IRS helps a bit by providing form SS–8 which can be submitted to the IRS for a pre–determination of the status of a worker.

This is not a test to be considered lightly.  The penalties for misclassification are onerous, and early-stage companies usually cannot afford the risk at the very time when they are most vulnerable.  One more time:  check out the previous article listed above for the ten tests.

And now, think of Uber, Lyft, AirB&B, and all the others that try to teach and enforce consistency, adherence to company rules, management of time, and determination of the quality of the worker’s facility or vehicle or tools.  And try to classify the worker using the above questions.  It becomes very difficult, and certainly leads to conflict, potential lawsuits, and lack of easy resolution.

No–one said that managing a business is easy.

This range of issues just makes it even more difficult.  Yet, the risk of betting the farm on a wrong classification of an increasing number of workers is too great to ignore this subject or not to understand its impact upon the business.

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4 Responses to Employee vs. contractor: Here we go again.

  1. Charles Dapoz says:

    Under IRS guidelines #1 you say, “Does the employee have the right to direct or control …” Do you mean employer?

  2. Dave Berkus says:

    Charles, good catch. You are right. I have changed the post to say “Employer…has the right to control…”
    -Dave

  3. B. Williams says:

    I see many tech companies outsourcing the contract/hourly job to a 3rd party recruiting firm who offers you the job as w2 hourly contractor to get around many of these things. The benefits from these recruiting firm are often terrible. Do you have any thoughts on this practice?

  4. Dave Berkus says:

    B., Your comment is a good one. I should have added this option with the twist: Payroll management services do not solve the independent contractor problem, they only remove the HR and payroll reporting functions for those employees.

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