For an individual, being classified as an independent contractor means having the responsibility to pay both the employee and employer share of payroll taxes. These include Social Security taxes under the Federal Insurance Contributions Act (FICA), payroll taxes for Medicare, and taxes under the Federal Unemployment Tax (FUTA) in accordance with the Internal Revenue Code. Employees participate in employee benefit plans, while independent contractors do not. A host of other laws regulate employment practices and typically do not apply to independent contractors, including the National Labors Relations Act (NLRA), the Fair Labor Standards Act (FLSA), state workers’ compensation laws and some, but not all, employment discrimination laws.
There are both advantages and disadvantages to the use of independent contractors. Because employers are required to pay certain fringe benefits and payroll taxes with respect to their employees, the financial benefits of having a large independent contractor workforce can be significant. However, it can be also be extremely burdensome for employers to keep on top of exactly what qualifies someone as an independent contractor, and the penalties for misclassification can be costly.
Individuals who operate as independent contractors also have many advantages, including the ability to write off business expenses that would not be deductible on their individual tax returns, the ability to establish more generous retirement plans than an employer might offer them, and the ability to employ family members in their business and thus channel income to those in a lower tax bracket.
There is a definite trend for courts and federal and state agencies to reclassify independent contractors as employees. In these situations, employers become exposed to unanticipated liabilities and penalties. Therefore, especially for those employers that use large numbers of independent contractors, it is critical to consider the potential ramifications of misclassifying employees as independent contractors.
In making classification decisions, it is important to remember that not all laws define “employee” or “independent contractor” in the same way. Therefore, the same person may be an employee under one law but an independent contractor under another. Employers certainly have good reason to complain about the difficulty of trying to comply with the law in this area.
Employees’ wages are subject to withholding for federal and state income taxes. Social Security and Medicare are withheld for employees only – not independent contractors. Accordingly, the Internal Revenue Service (IRS) has a strong interest in whether employees are legitimately characterized as independent contractors.
With the exception of statutory employees and statutory non-employees, the IRS uses the common law “right-to-control” test in determining whether an individual is correctly classified as an independent contractor. The IRS works through a list of 20 factors before concluding whether the business has “the right to direct and control the means and details of the work.” Employers should similarly work through the same exercise. If the business has that right to control, the individual will be deemed to be an employee. The employer should keep in mind that the importance of each factor will vary depending on the type of work being done and the circumstances of the particular case. In close cases, an employer may want to consider consulting a tax professional or requesting an IRS determination of the worker’s status. Bearing this in mind, the following are the 20 factors considered by the IRS in the right-to-control test:
The IRS will determine whether a worker should be considered as an employee under the 20-factor test described previously. Employers may submit Form SS-8, Determination of Worker Status for Purposes of Federal Employment Taxes and Income Tax Withholding in order to receive an official determination of a worker’s status. Although the IRS tends to find employee status in close cases, one advantage of using this procedure is that employers are permitted to rely on the IRS’s determination, provided that the facts have been accurately reported. A copy of the Form SS-8 and its instructions can be downloaded from the IRS website at:
On September 21, 2011, the IRS launched a low-cost settlement program that will enable employers to voluntarily reclassify their workers as employees for future tax periods. The current program, which was last modified in December 2012, is available at:
The Voluntary Classification Settlement Program (VCSP) is intended to simplify the current complex worker classification rules. Under the program, eligible employers can obtain substantial relief from federal payroll taxes they may have owed in the past by making a minimal payment covering past payroll tax obligations. Participating employers can resolve their back tax liability for 10% of the employment tax liability that would have been due on compensation paid to the workers for the most recent tax year using a reduced rates section of the Internal Revenue Code, and they will not be liable for any interest or penalties and will not be audited on worker classification issues for prior years. To be eligible, an applicant must:
Interested employers may submit Form 8952, Application for Voluntary Classification Settlement Program, at least 60 days before the employers want to begin treating the workers as employees. A copy of Form 8952 and its instructions are available at:
More information on the program itself is available at:
If workers are independent contractors under the “right to control” test, those workers may nevertheless be treated as employees by statute (statutory employees) for certain employment tax purposes if they fall within one of the four worker categories and all three of the following conditions apply:
The four worker categories are:
The tax code exempts certain occupations from FICA, FUTA, and employee tax withholding requirements, regardless of any contract involved or the labels attached to the parties. For an occupation to fall within the category of statutory nonemployee, the worker must be a qualified real estate agent, direct seller (including newspaper carriers and distributors), or certain companion sitters who meets specific IRC requirements.
A worker is a qualified real estate agent if:
A direct seller is defined as a person engaged in the trade or business of selling consumer products on a buy-sell basis for resale in a place other than a permanent retail establishment. Compensation must relate to sales rather than the number of hours worked. Finally, there must also be a written contract renouncing any employee status for the individual to qualify as a direct seller.
A companion sitter is an individual who furnishes personal attendance, companionship, or household care services to children or to individuals who are elderly or disabled. A companion sitter will not be treated as an employee of a companion sitting placement service if the companion placement service neither pays nor receives salary or wages earned by the sitter. However, the companion placement service may be compensated on a fee basis by the sitter or the person for whom the sitting services are performed.
Congress has enacted a “safe haven” rule that, for some employers, can minimize their uncertainty when it comes to proper treatment of workers as employees or independent contractors for purposes of employment taxes. This rule provides that an employer cannot be penalized for its classification of a particular worker as an independent contractor if each of the following three requirements are met:
The Fair Labor Standards Act (FLSA) regulates wage and overtime requirements for employees. See Wages and hours. The FLSA defines employee very broadly as “any individual employed by an employer.” Given this vague definition, state and federal courts have typically applied the “economic realities” test in determining a worker’s status under the FLSA.
The economic realities test generally revolves around the amount of monetary risk the workers have in the job (in other words, if the workers can finish the job with a monetary loss, then they will typically be considered to be independent contractors). Although the economic realities test focuses on the worker’s monetary risk, the courts also look to whether the employees have the right to control how the work is performed. Therefore, both economic reality and the right to control are relevant (see section at the top of this chapter: IRS’s right to control test). In applying the economic realities test, the courts look to the following factors:
Some courts refer to this test as the “hybrid” test (particularly in the employment discrimination context), while others continue to call it the “economic realities” test. As part of the economic realities test, the courts look to the circumstances of the whole activity and not any one of the aforementioned factors.
The Employee Retirement Income Security Act (ERISA) was enacted to safeguard employee benefit plans, such as pension plans, profit-sharing plans, and health insurance plans. The classification of a worker as an independent contractor or employee determines that individual’s coverage under ERISA. If the worker is an employee, then individual is protected by ERISA, but if the employee is an independent contractor, no such protection exists.
ERISA uses the common law agency approach to determine whether an individual is an employee. In 1992, the United States Supreme Court set forth standards to be used to determine whether a person is an employee for purposes of ERISA. The Supreme Court found that in determining whether an individual is an employee, the hiring party’s right to control the manner and means by which the product is accomplished should be considered. Among the factors relevant to this inquiry are:
Federal anti-discrimination laws, such as the Age Discrimination in Employment Act (ADEA), the Americans with Disabilities Act (ADA), and Title VII of the Civil Rights Act of 1964 (Title VII), only apply to employees. By contrast, the Rehabilitation Act, which has some provisions that are similar to the ADA, has been held by courts to extend beyond the employer-employee relationship to cover independent contractors. Typically, courts apply a hybrid test to determine the worker’s status under the ADEA, the ADA and Title VII.
The hybrid test is a combination of the economic realities test and the basic right-to-control test. Under this test, courts focus on the right to control, but they also take economic realities into consideration as needed and look at the following factors to determine the worker’s status under the ADEA, the ADA, and Title VII:
Employers should be aware that although independent contractors are not covered under the federal anti-discrimination laws set forth above, they are protected under Section 1981 of the Civil Rights Act of 1866, as amended by the Civil Rights Act of 1991. As originally enacted, Section 1981 provided that, “all persons within the jurisdiction of the United States shall have the same right in every state and territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefits of all laws and proceedings for the security of persons and property as is enjoyed by white citizens ...” In 1991, Congress amended the Act by adding language making it clear that this statute encompasses all aspects of how contracts are administered.
As a result of findings by the courts in lawsuits involving race discrimination claims by independent contractors, employers should be aware that they will not necessarily prevail on race discrimination or harassment cases just because they can successfully argue that the worker at issue was an independent contractor.
The National Labor Relations Act (NLRA) protects workers against unfair labor practices and allows them to organize or support labor organizations without fear of recrimination by the employer. The NLRA specifically excludes from its definition “any individual having the status of independent contractor.” The NLRA first will apply a common-law agency principle to determine whether the individual should be excluded as an independent contractor within the meaning of the NLRA. Although there is no shorthand formula associated with the test, the National Labor Relations Board (NLRB) has described the following factors as significant:
The NLRB also notes that the above factors should not be applied uniformly. Instead, the NLRB gave the following explanation as to how they should be applied:
The total factual context of any relationship must be reviewed in light of relevant common law principles. No one factor is decisive. The same set of factors that are relevant in one case may be unpersuasive when balanced against a different set of opposing factors in another case. In other words, it is very difficult to rely on the weight given to a certain factor in one case.
Of course this kind of test gives very little guidance to an employer trying to understand and comply with the law, because the analysis will always be after-the-fact and in the context of an adversary proceeding.
Classification of a worker as an employee or an independent contractor is important under the Minnesota Workers’ Compensation Act (MWCA). Employees who are injured on the job must pursue their remedies through the MWCA rather than sue their employer. Independent contractors, on the other hand, are not employees under the MWCA and are ineligible for workers’ compensation benefits if they are injured while performing work for the company that hired them. In those cases, independent contractors may be able to pursue tort claims for injuries caused by third parties. The distinction between an employee and an independent contractor is a fact-based question.
As is confirmed by the Minnesota Department of Labor and Industry and Minnesota case law, the factors to be considered in determining whether a particular relationship is that of employer-employee or owner-independent contractor for purposes of determining the availability of workers’ compensation are:
The degree of control that one party can exert over the other has come to be the primary factor considered in making this determination in Minnesota. Because the determination is so fact-specific, the Minnesota statutes created guidelines for asserting independent contractor status in regard to 34 specific occupations. Those guidelines, and the criteria discussed in the guidelines, can be a helpful resource for an employer attempting to determine whether a worker is an employee or an independent contractor for purposes of workers' compensation, and they are available at:
Similarly, a worker operating a car, van, truck, tractor, or truck-tractor that is licensed and registered by a governmental motor-vehicle agency is also considered an employee unless that worker meets a separate seven-factor test (the elements of which can be accessed here:
Under Minnesota law, employers are not obligated to pay unemployment taxes for independent contractors. Likewise, independent contractors are not eligible for benefits when their services are discontinued through no fault of their own. Language in a contract between the employer and worker characterizing the worker as an independent contractor is not controlling, nor is issuance of a 1099 tax form. Rather, the primary concern is how the contract actually is performed, not what it states. In making a determination as to whether a worker is an employee or an independent contractor, the Minnesota Unemployment Insurance Program (UI) uses a common law factor analysis similar to what is used by the IRS. Of the 20 IRS factors, the five factors that are given the most weight by the UI program are those regarding:
The City of Minneapolis enacted the Minneapolis Freelance Worker Protections Ordinance, which took effect on January 1, 2021. This ordinance requires companies to enter into written agreements with most freelance workers.
The ordinance contains provisions applicable to a commercial hiring party and other requirements applicable to an individual hiring party.
A commercial hiring party means any person or entity regularly engaged in business or commercial activity, including a digital network-based entity, who retains a freelance worker to provide any service as part of that business or commercial activity. A commercial hiring party that retains freelance workers to perform work in the City of Minneapolis must have a written contract with each worker if the worker will perform a minimum of the following:
The ordinance applies to a commercial hiring party that retains a freelance worker not only when the worker provides services directly to that company. It also applies to a freelance worker who provides services through a digital network to a third party. “Retains” means to enter into a contract through which the freelance worker provides services either to the hiring party or to a third party (such as a digital platform). For example, if food is delivered in the City of Minneapolis via a digital network, the digital network must have a written agreement with the driver.
The written agreement must be signed by the freelance worker and contain the following minimum elements:
Where the parties are not able to specify the total compensation prior to performance, the written contract must describe the method by which the total compensation will be determined and identify which party is responsible for maintaining the information necessary to determine the compensation (such as tracking the number of hours worked, the applicable project or other method by which the freelance worker is paid).
If the commercial hiring party is responsible for tracking the information necessary to determine the compensation, the commercial hiring party must provide the freelance worker with an earnings statement setting forth the total compensation being paid and a detailed calculation by which the amount was determined.
When the independent contractor/freelance worker is responsible for keeping track of this information, they must provide the commercial hiring party with an invoice stating the total compensation amount and a detailed calculation by which the amount was determined.
If the contract does not specify the date or mechanism for when payment becomes due, payment must be made no later than 30 days after the completion of services.
The Minneapolis Department of Civil Rights investigates and enforces the ordinance. It is a violation of the ordinance for a hiring party to fail or refuse to pay the agreed-upon compensation or require the freelance worker to accept as a condition of timely payment less compensation after the work has commenced. If a hiring party is found to have violated the Ordinance, a freelance worker may be able to recover compensatory damages in the amount of the unpaid sum and liquidated damages up to double the compensatory damage award. There are also additional civil fines, fines for repeat violations and the City’s Department of Civil Rights can seek reimbursement for investigation costs.
If a commercial hiring party fails to create a written contract, it is subject to a fine of up to $250 for each violation, if the freelance worker can establish they requested a written contract and made the hiring party aware of the requirement that the contract be in writing.
A freelance worker who passes only incidentally through the City in the performance of the contract is not covered by this ordinance.
The choice between using an employee or an independent contractor is one that should be made only after careful consideration. A separate analysis should be made under each law that may be applicable. Special attention should be given to the classification of these workers, since improper classification can lead to significant tax and nontax penalties, liability for injury, and other costly liabilities for the employer.