| Trying to determine whether you are dealing
with an employee or an independent contractor can be pretty
confusing. Even the courts often find that the traditional
rule of thumb is not enough; other factors need to be
considered. Under the common law test, an employee can
be directed and controlled as to when, where and how the
work should be done, as well as its tangible result. The
employer need not exercise control; it is sufficient that
he has the right to do so. The factors or elements that
show control are listed below. Any single fact or a small
group of facts is not conclusive evidence of the presence
or absence of control as these common law factors are
not always present in every case. Some factors do not
apply to certain occupations, and the importance of each
factor may vary with the occupation. Each factor is not
always given equal weight. In each case, therefore, you
must consider: that the factor exists; and how significant
it is in determining whether a worker is an employee or
an independent contractor.
Signposts Of An Employee
- May be discharged.
- Receives hourly or salaried payment on a periodic
basis.
- Permanent relationship is intended.
- Has regular, continuous, or stated tenure.
- Has employer-furnished tools, equipment, and/or
place of work.
- Must do the job personally.
- Other employment is restricted.
- Training provided.
- Has set hours of work.
Signposts of An Independent Contractor
- Receives payment by the job.
- Number of transactions is single or limited.
- Relationship is brief in duration.
- The worker has a substantial investment in
the work.
- The worker has an opportunity for profit or
loss.
- Others may be employed to assist the worker.
- Services are offered to the general public.
- The person is involved in a recognized trade
or calling.
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