Small Business


Intellectual Property

 September 04, 2017

Employee or Independent Contractor?

Two co-workers looking at business website analytics on computer monitor

Small Businesses & Independent Contractors

Many small businesses utilize or are utilized as independent contractors. Business owners have a legal responsibility to establish whether the IRS classifies someone working for them as an employee or an independent contractor.

Distinctions between contractors and employees may not always be clear cut. Making the wrong determination can have serious financial and legal consequences. If you have any questions call your LegalShield provider law firm.

Worker Classifications – There are four worker classifications made by the IRS. Some states may classify workers differently than the IRS.

  • Independent Contractor – Under common law, an independent contractor controls the kind of work they take on and how they complete the work. In this circumstance, the business hiring them to complete the work would only control the end result or product. While deadlines can be set for an independent contractor, specific work hours cannot be mandated.
  • Employee – Under common law, if you control what, when, where and how work is done, the worker is considered an employee.
  • Statutory Employee – Some workers who meet the common law requirements as an independent contractor may still be considered an employee due to specific statutes designating them as such. Statutory employees include:
    • Individuals who work from home under specific instruction with materials you provide, which are returned to you or to someone you name;
    • Food and beverage delivery drivers (milk excluded);
    • Commissioned laundry and dry cleaning drivers;
    • Insurance agents working primarily for one life insurance company selling life insurance or annuity contracts; and
    • Full-time traveling salespersons submitting orders directly to you from businesses or wholesale establishments.
  • Statutory Nonemployee – Statutes deem some workers, who would otherwise be considered employees, nonemployees. These include:
  • Direct sellers and real estate workers who are not paid on an hourly basis; and
  • Companion sitters (private duty nurses and home health aides) not employed by a placement service.

Still unsure how to classify a worker? The IRS does have a form, which employers can complete and submit, requesting that the IRS determine the worker’s status. If you are an employer, consult your LegalShield provider law firm before filing the form. It may take the IRS six months or more to respond to your request.

Taxes & Reporting – The main purpose for classifying a worker is to determine the taxes and record-keeping for which your business will be responsible.

  • Independent Contractors – The forms and information needed for independent contractors are available from the IRS.
  • Employees – The appropriate forms and tax information for employees can also be located on the IRS website.

Penalties – Employers who fail to accurately report an employee may be held liable for past due employment taxes. There are relief provisions in some circumstances. If you have any questions call your LegalShield provider law firm right away.


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