Contractor working on a metal lathe with a pin in the lathe ready to work on

Independent Contractor or Employee 20 Factor Test and Criteria Business Owners Need to Know

Is the person or people working for you a subcontractor or employee?

  • The IRS uses a 20-point cri­te­ria test to deter­mine a work­er’s sta­tus
  • Each state has its own test that gen­er­al­ly fol­lows the IRS test, albeit often varies great­ly due to statutes
  • The two pri­ma­ry ques­tions asked is the old­er stan­dard of “How much does the prin­ci­pal exert con­trol over the work­er’s means of exe­cut­ing the task,” as well as the new­er stan­dard of “Entre­pre­neur Oppor­tu­ni­ty” for the work­er.
  • It is pos­si­ble that the Prin­ci­pal could be faced with a split, where­as the fed­er­al gov­ern­ment treats the sta­tus as one and the state treats the rela­tion­ship as anoth­er.
  • Along with the state and IRS, employ­ers and employ­ees also have to con­tend with the Nation­al Labor Rela­tions Board (NLRB), which often appears to be polit­i­cal­ly moti­vat­ed, or at least to a greater extent than the IRS.

 

It’s a ques­tion asked often by busi­ness peo­ple and it’s easy to get it wrong, espe­cial­ly by new busi­ness own­ers try­ing to save mon­ey and the logis­ti­cal bur­den hav­ing employ­ees cre­ate.

As a rule, in the states that we oper­ate, staff mem­bers are employ­ees unless proven oth­er­wise. The IRS has its own set of rules if an employ­ee is a 1099 inde­pen­dent con­trac­tor or a W2 employ­ee, and the var­i­ous states have their own rules. So it’s not enough to sat­is­fy only one, because if only one or the oth­er says any giv­en per­son is an employ­ee, that’s what they are. 

small boy pushing a manual lawn mower on the grass

It’s easy to under­stand why some­times every­one involved would rather a sit­u­a­tion calls for an inde­pen­dent con­trac­tor instead of an employ­ee. Employ­ers have to pay into unem­ploy­ment com­pen­sa­tion, buy a  work­er’s com­pre­hen­sive insur­ance pol­i­cy and be sub­ject­ed to some­times time con­sum­ing audits, pay the employ­er’s side of FICA (social secu­ri­ty), and it can change how the own­er’s retire­ment fund­ing is han­dled. For employ­ees, expens­es relat­ed to the job are deductible for fed­er­al and state income tax­es, but they still have to pay the full amount to FICA.

Con­sid­er­ing FICA is one of the worst invest­ments you’ll like­ly make, it’s no sur­prise why so many avoid pay­ing into it as much as pos­si­ble. There’s one excep­tion though. If you’re unhealthy from child­hood, it’s a safe­ty net that might not oth­er­wise be there. 

You may already know the above and just want to know what are some of the cri­te­ria employ­ers and employ­ees should know when decid­ing if some­one is an inde­pen­dent con­trac­tor and should receive a 1099 at the end of the year or an employ­ee and receive a W2.

The IRS pegs peo­ple into four key cat­e­gories. An inde­pen­dent con­trac­tor, com­mon-law employ­ee, statu­to­ry employ­ee, and statu­to­ry non-employ­ee. The IRS has a lot of infor­ma­tion on its web­site and includes:

Com­mon Law Rules

  • Behav­ior - Does the com­pa­ny con­trol or have the right to con­trol what the work­er does and how the work­er does his or her job

Some of the cri­te­ria used to deter­mine if behav­ioral con­trol is used includes the fol­low­ing:

  1. Instruc­tions the busi­ness gives the work­er. An employ­ee is gen­er­al­ly sub­ject to the busi­ness’ instruc­tions about when, where, and how to work. All of the fol­low­ing are exam­ples of types of instruc­tions about how to do work:

    1. Direct­ing the work­er what time to start and fin­ish, and where to do the work

    2. What tools or equip­ment to use, and typ­i­cal­ly using the employ­er’s tools

    3. What work­ers to hire or to assist with the work

    4. Where to pur­chase sup­plies and ser­vices, and usu­al­ly pay­ing for them.

    5. What work must be per­formed by a spec­i­fied indi­vid­ual, and not allow­ing the work­er to direct anoth­er non-employ­ee to do the work.

    6. What order or sequence to fol­low, and method.

  2. Train­ing the busi­ness gives the work­er. An employ­ee may be trained to per­form ser­vices in a par­tic­u­lar man­ner. Inde­pen­dent con­trac­tors ordi­nar­i­ly use their own meth­ods.

  • Finan­cial - Are the busi­ness aspects of the work­er’s job con­trolled by the pay­er? (these include things like how the work­er is paid, whether expens­es are reim­bursed, who pro­vides tools/supplies, etc..). A big key is can the work­er lose mon­ey. If the work­er can’t lose mon­ey on the job, that tends to weigh heav­i­ly towards the employ­ee sta­tus. Employ­ees rarely can lose mon­ey, while busi­ness own­ers (i.e. inde­pen­dent con­trac­tors can eas­i­ly lose mon­ey).
  1. The extent to which the work­er has unre­im­bursed busi­ness expens­es. Inde­pen­dent con­trac­tors are more like­ly to have unre­im­bursed expens­es than are employ­ees. Fixed ongo­ing costs that are incurred regard­less of whether work is cur­rent­ly being per­formed are espe­cial­ly impor­tant. How­ev­er, employ­ees may also incur unre­im­bursed expens­es in con­nec­tion with the ser­vices they per­form for their busi­ness.

  2. The extent of the work­er’s invest­ment. An employ­ee usu­al­ly has no invest­ment in the work oth­er than his or her own time. An inde­pen­dent con­trac­tor often has a sig­nif­i­cant invest­ment in the facil­i­ties he or she uses in per­form­ing ser­vices for some­one else. How­ev­er, a sig­nif­i­cant invest­ment is not nec­es­sary for inde­pen­dent con­trac­tor sta­tus.

  3. The extent to which the work­er makes ser­vices avail­able to the rel­e­vant mar­ket. An inde­pen­dent con­trac­tor is gen­er­al­ly free to seek out busi­ness oppor­tu­ni­ties. Inde­pen­dent con­trac­tors often adver­tise, main­tain a vis­i­ble busi­ness loca­tion, and are avail­able to work in the rel­e­vant mar­ket.

  4. How the busi­ness pays the work­er. An employ­ee is gen­er­al­ly guar­an­teed a reg­u­lar wage amount for an hourly, week­ly, or oth­er peri­od of time. This usu­al­ly indi­cates that a work­er is an employ­ee, even when the wage or salary is sup­ple­ment­ed by a com­mis­sion. An inde­pen­dent con­trac­tor is usu­al­ly paid by a flat fee for the job. How­ev­er, it is com­mon in some pro­fes­sions, such as law, to pay inde­pen­dent con­trac­tors hourly.

  5. The extent to which the work­er can real­ize a prof­it or loss. Since an employ­er usu­al­ly pro­vides employ­ees a work­place, tools, mate­ri­als, equip­ment, and sup­plies need­ed for the work, and gen­er­al­ly pays the costs of doing busi­ness, employ­ees do not have an oppor­tu­ni­ty to make a prof­it or loss. An inde­pen­dent con­trac­tor can make a prof­it or loss.

  • Type of Rela­tion­ship — Are there writ­ten con­trac­tos and or employ­ee type ben­e­fits (i.e. retire­ment plan, insur­ance, vaca­tion pay, etc)? Will the rela­tion­ship con­tin­ue and is the work per­formed a key com­po­nent of the busi­ness’ needs?
  1. Writ­ten con­tracts describ­ing the rela­tion­ship the par­ties intend­ed to cre­ate. This is prob­a­bly the least impor­tant of the cri­te­ria, since what real­ly mat­ters is the nature of the under­ly­ing work rela­tion­ship, not what the par­ties choose to call it. How­ev­er, in close cas­es, the writ­ten con­tract can make a dif­fer­ence.

  2. Whether the busi­ness pro­vides the work­er with employ­ee-type ben­e­fits, such as insur­ance, a pen­sion plan, vaca­tion pay, or sick pay. The pow­er to grant ben­e­fits car­ries with it the pow­er to take them away, which is a pow­er gen­er­al­ly exer­cised by employ­ers over employ­ees. A true inde­pen­dent con­trac­tor will finance his or her own ben­e­fits out of the over­all prof­its of the enter­prise.

  3. The per­ma­nen­cy of the rela­tion­ship. If the com­pa­ny engages a work­er with the expec­ta­tion that the rela­tion­ship will con­tin­ue indef­i­nite­ly, rather than for a spe­cif­ic project or peri­od, this is gen­er­al­ly con­sid­ered evi­dence that the intent was to cre­ate an employ­er-employ­ee rela­tion­ship.

  4. The extent to which ser­vices per­formed by the work­er are a key aspect of the reg­u­lar busi­ness of the com­pa­ny. If a work­er pro­vides ser­vices that are a key aspect of the com­pa­ny’s reg­u­lar busi­ness activ­i­ty, it is more like­ly that the com­pa­ny will have the right to direct and con­trol his or her activ­i­ties. For exam­ple, if a law firm hires an attor­ney, it is like­ly that it will present the attor­ney’s work as its own and would have the right to con­trol or direct that work. This would indi­cate an employ­er-employ­ee rela­tion­ship.

Remem­ber, work­ers are con­sid­ered to be employ­ees unless it’s shown that inde­pen­dent con­trac­tor is clear­ly the appro­pri­ate clas­si­fi­ca­tion

Here are oth­er fac­tors used to test if a work­er is an inde­pen­dent con­trac­tor or employ­ee: 

EMPLOYMENT STATUS — A COMPARATIVE APPROACH
Under the com­mon law test, a work­er is an employ­ee if the pur­chas­er of that work­er’s ser­vice has the right to direct or con­trol the work­er, both as to the final results and as to the details of when, where, and how the work is done. Con­trol need not actu­al­ly be exer­cised; rather, if the ser­vice recip­i­ent has the right to con­trol, employ­ment may be shown.Depend­ing upon the type of busi­ness and the ser­vices per­formed, not all of the twen­ty com­mon law fac­tors may apply. In addi­tion, the weight assigned to a spe­cif­ic fac­tor may vary depend­ing upon the facts of the case. If an employ­ment rela­tion­ship exists, it does not mat­ter that the employ­ee is called some­thing dif­fer­ent, such as: agent, con­tract labor, sub­con­trac­tor, or inde­pen­dent con­trac­tor.
1. INSTRUCTIONS:11. ORAL OR WRITTEN REPORTS:
An Employ­ee receives instruc­tions about when, where and how the work is to be per­formed.
An Inde­pen­dent Con­trac­tor does the job his or her own way with few, if any, instruc­tions as to the details or meth­ods of the work.
An Employ­ee may be required to sub­mit reg­u­lar oral or writ­ten reports about the work in progress.
An Inde­pen­dent Con­trac­tor is usu­al­ly not required to sub­mit reg­u­lar oral or writ­ten reports about the work in progress.
2. TRAINING:12.PAYMENT BY THE HOUR, WEEK, OR MONTH:
Employ­ees are often trained by a more expe­ri­enced employ­ee or are required to attend meet­ings or take train­ing cours­es.
An Inde­pen­dent Con­trac­tor uses his or her own meth­ods and thus need not receive train­ing from the pur­chas­er of those ser­vices.
An Employ­ee is typ­i­cal­ly paid by the employ­er in reg­u­lar amounts at stat­ed inter­vals, such as by the hour or week.
An Inde­pen­dent Con­trac­tor is nor­mal­ly paid by the job, either a nego­ti­at­ed flat rate or upon sub­mis­sion of a bid.
3. INTEGRATION:13. PAYMENT OF BUSINESS & TRAVEL EXPENSE:
Ser­vices of an Employ­ee are usu­al­ly merged into the fir­m’s over­all oper­a­tion; the fir­m’s suc­cess depends on those Employ­ee ser­vices.
An Inde­pen­dent Con­trac­tor’s ser­vices are usu­al­ly sep­a­rate from the clien­t’s busi­ness and are not inte­grat­ed or merged into it.
An Employ­ee’s busi­ness and trav­el expens­es are either paid direct­ly or reim­bursed by the employ­er.
Inde­pen­dent Con­trac­tors nor­mal­ly pay all of their own busi­ness and trav­el expens­es with­out reim­burse­ment.
4. SERVICES RENDERED PERSONALLY:14. FURNISHING TOOLS & EQUIPMENT:
An Employ­ee’s ser­vices must be ren­dered per­son­al­ly; Employ­ees do not hire their own sub­sti­tutes or del­e­gate work to them.
A true Inde­pen­dent Con­trac­tor is able to assign anoth­er to do the job in his or her place and need not per­form ser­vices per­son­al­ly.
Employ­ees are fur­nished all nec­es­sary tools, mate­ri­als, and equip­ment by their employ­er.
An Inde­pen­dent Con­trac­tor ordi­nar­i­ly pro­vides all of the tools and equip­ment nec­es­sary to com­plete the job.
5. HIRING, SUPERVISING & PAYING HELPERS:15. SIGNIFICANT INVESTMENT:
An Employ­ee may act as a fore­man for the employ­er but, if so, helpers are paid with the employ­er’s funds.
Inde­pen­dent Con­trac­tors select, hire, pay, and super­vise any helpers used and are respon­si­ble for the results of the helpers’ labor.
An Employ­ee gen­er­al­ly has lit­tle or no invest­ment in the busi­ness. Instead, an Employ­ee is eco­nom­i­cal­ly depen­dent on the employ­er.
True Inde­pen­dent Con­trac­tors usu­al­ly have a sub­stan­tial finan­cial invest­ment in their inde­pen­dent busi­ness.
6. CONTINUING RELATIONSHIP:16. REALIZE PROFIT OR LOSS:
An Employ­ee often con­tin­ues to work for the same employ­er month after month or year after year.
An Inde­pen­dent Con­trac­tor is usu­al­ly hired to do one job of lim­it­ed or indef­i­nite dura­tion and has no expec­ta­tion of con­tin­u­ing work.
An Employ­ee does not ordi­nar­i­ly real­ize a prof­it or loss in the busi­ness. Rather, Employ­ees are paid for ser­vices ren­dered.
An Inde­pen­dent Con­trac­tor can either real­ize a prof­it or suf­fer a loss depend­ing on the man­age­ment of expens­es and rev­enues.
7. SET HOURS OF WORK:17. WORKING FOR MORE THAN ONE FIRM AT A TIME:
An Employ­ee may work “on call” or dur­ing hours and days as set by the employ­er.
A true Inde­pen­dent Con­trac­tor is the mas­ter of his or her own time and works the days and hours he or she choos­es.
An Employ­ee ordi­nar­i­ly works for one employ­er at a time and may be pro­hib­it­ed from join­ing a com­peti­tor.
An Inde­pen­dent Con­trac­tor often works for more than one client or firm at the same time and is not sub­ject to a non-com­pe­ti­tion rule.
8. FULL TIME REQUIRED:18. MAKING SERVICE AVAILABLE TO THE PUBLIC:
An Employ­ee ordi­nar­i­ly devotes full-time ser­vice to the employ­er, or the employ­er may have a pri­or­i­ty on the Employ­ee’s time.
A true Inde­pen­dent Con­trac­tor can­not be required to devote full-time ser­vice to one firm exclu­sive­ly.
An Employ­ee does not make his or her ser­vices avail­able to the pub­lic except through the employ­er’s com­pa­ny.
An Inde­pen­dent Con­trac­tor may adver­tise, car­ry busi­ness cards, hang out a shin­gle, or hold a sep­a­rate busi­ness license.
9. LOCATION WHERE SERVICES PERFORMED:19. RIGHT TO DISCHARGE WITHOUT LIABILITY:
Employ­ment is indi­cat­ed if the employ­er has the right to man­date where ser­vices are per­formed.
Inde­pen­dent Con­trac­tors ordi­nar­i­ly work where they choose. The work­place may be away from the clien­t’s premis­es.
An Employ­ee can be dis­charged at any time with­out lia­bil­i­ty on the employ­er’s part.
If the work meets the con­tract terms, an Inde­pen­dent Con­trac­tor can­not be fired with­out lia­bil­i­ty for breach of con­tract.
10. ORDER OR SEQUENCE SET:20. RIGHT TO QUIT WITHOUT LIABILITY:
An Employ­ee per­forms ser­vices in the order or sequence set by the employ­er. This shows con­trol by the employ­er.
A true Inde­pen­dent Con­trac­tor is con­cerned only with the fin­ished prod­uct and sets his or her own order or sequence of work.
An Employ­ee may quit work at any time with­out lia­bil­i­ty on the Employ­ee’s part.
An Inde­pen­dent Con­trac­tor is legal­ly respon­si­ble for job com­ple­tion and, on quit­ting, becomes liable for breach of con­tract.

 

Entrepreneur Opportunity Test

As men­tioned in the begin­ning, anoth­er test that is becom­ing increas­ing­ly preva­lent in a giv­en reg­u­la­tor or court’s analy­sis is the “entre­pre­neur oppor­tu­ni­ty” test. (although it’s impor­tant to note the impor­tance of this analy­sis does shift from time to time as seen in the Nation­al Labor Rela­tions Board in The Atlanta Opera, Inc. and Make-Up Artists and Hair Styl­ists Union, Local 798, in which the NLRB reversed its 2019 deci­sion in Super­Shut­tle DFW, Inc. and used its pre­vi­ous cri­te­ria in the 2014 FedEx Home Deliv­ery deci­sion).

For exam­ple, in writ­ing it’s deci­sion, the NLRB high­light­ed the role of “entre­pre­neur­ial oppor­tu­ni­ty” in its analy­sis, clar­i­fy­ing that putting forth evi­dence of entre­pre­neur­ial oppor­tu­ni­ty, among oth­er con­sid­er­a­tions, is rel­e­vant to whether a puta­tive con­trac­tor ren­dered ser­vices as part of an inde­pen­dent busi­ness. Thus, rather than treat­ing entre­pre­neur­ial oppor­tu­ni­ty as a “super­fac­tor,” or as a deter­min­er that cast aside oth­er “lessor” con­sid­er­ings and facts by which to weigh the var­i­ous oth­er fac­tors, the NLRB did con­sid­er entre­pre­neur­ial oppor­tu­ni­ty as one of the many key ele­ments of the non-exhaus­tive com­mon law test used.  The NLRD addi­tion­al­ly high­light­ed the dif­fer­ence of bonafide “actu­al oppor­tu­ni­ties,” per­mit­ting “the exer­cise of gen­uine entre­pre­neur­ial auton­o­my,” in con­trast to “those that are cir­cum­scribed or effec­tive­ly blocked by the employ­er.”  Where the day-to-day work of most indi­vid­u­als in a bar­gain­ing unit does not have an entre­pre­neur­ial dimen­sion, the NLRD not­ed that the mere fact the agree­ment and  con­tract per­mits out­side entre­pre­neur­ial activ­i­ty is not a suf­fi­cient allowance and flex­i­bil­i­ty to the work­ers to char­ac­ter­ize the styl­ists as indi­vid­u­als inde­pen­dent con­trac­tors enabled to select and choose what oppor­tu­ni­ties they wish to avail them­selves to.

Fur­ther­more, it should be not­ed as part of assess­ing the prop­er clas­si­fi­ca­tion of the styl­ists work­ers, the NLRD stat­ed a few fac­tors that may be high­ly help­ful for prin­ci­pals wish­ing to main­tain or devel­op a rela­tion­ship with works as inde­pen­dent con­trac­tors, includ­ing:

  • The styl­ists were engaged in a dis­tinct occu­pa­tion or busi­ness,
  • The skill required in the occu­pa­tion, and
  • The dura­tion of the rela­tion­ship.

In con­trast, oth­er infor­ma­tive fac­tors weighed in favor of an employ­ment rela­tion­ship include:

  • The con­trol exer­cised over the day-to-day work,
  • The super­vi­sion by the Prin­ci­pal,
  • The pro­vid­ing by the prin­ci­pal of equip­ment, sup­plies and place of work,
  • The method of pay­ment, and
  • The rela­tion­ship of the styl­ists’ work to the reg­u­lar busi­ness of the Prin­ci­pal.

As I have advised so many times to clients, an assess­ment of the par­ties’ expec­ta­tions as to work­ing rela­tion­ship was incon­clu­sive. While unin­tu­itive and con­fus­ing to most busi­ness own­ers (and work­ers alike), and per­haps even against com­mon sense in a sup­pos­ed­ly free-mar­ket dri­ven econ­o­my, the expec­ta­tions and agree­ments between the par­ties is a low or often non-exis­tent (in terms of weigh­ing the facts and cri­te­ria) fac­tor.

Final­ly, deter­min­ing if the styl­ists work­ers ren­dered ser­vices as an inde­pen­dent busi­ness or as employ­ees, the NLRB deter­mined and found the styl­ists work­ers were “fun­da­men­tal­ly con­strained” and lim­it­ed in their own inde­pen­dent entre­pre­neur­ial choic­es avail­able, based on the the man­ner in which the prin­ci­pal direct­ed and com­pelled its sched­ules and vir­tu­al­ly all entre­pre­neur­ial deci­sions, and based on the fact that work­ers were paid a fixed hourly wage and had no own­er­ship over their posi­tions or work.  While the NLRB rec­og­nized that styl­ists may have the oppor­tu­ni­ty to work for oth­er enti­ties, or for their own in oth­er loca­tions, and do in fact reg­u­lar­ly pur­sue such oppor­tu­ni­ties when they are not work­ing for the prin­ci­pal, the NLRB reached a con­clu­sion the stat­ed oppor­tu­ni­ty open to the styl­ists was pri­mar­i­ly based on the sea­son­al and inter­mit­tent nature of their work for the prin­ci­pal, and not con­tin­u­ous and selec­tive based on the styl­ists desires.

In con­clu­sion, the NLRB reached a deter­mi­na­tion the styl­ists do not ren­der ser­vices as part of their own, inde­pen­dent busi­ness sep­a­rate from over­rid­ing direc­tion of the prin­ci­pal.  There­fore, the NLRB found the styl­ists to be statu­to­ry employ­ees and not inde­pen­dent con­trac­tors. This of course can be an extreme­ly cost­ly deter­mi­na­tion for the prin­ci­pal and high­lights the impor­tance of not only struc­tur­ing the con­tract appro­pri­ate­ly, albeit to also struc­ture the expec­ta­tions and work­ing envi­ron­ment in such a man­ner as to over­come scruti­ny by gov­ern­ment actors inter­ven­ing in the rela­tion­ship. Busi­ness own­ers are well advised to seek legal coun­sel so as to not fall into the trap of fail­ing to run­ning afoul of a gov­ern­ment reg­u­la­tor.