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Independent Contractor or Employee - New Year, New Rule

Independent contractors, or gig workers, may seem like a solution to the litany issues and complexities that go along with employee management: from employee relations, tax and insurance costs to payroll administration costs, but what about the risk of misclassification. The Department of Labor recently released its final rule on the independent contractor rule that will go into effect on March 11, 2024. Additionally, the IRS has their own set of tests (or rules) as well as the Natioal Labor Relations Board, other statues and some states and municipalities. There is not a single test that can be applied in every situation, because of the various government agency rules or tests that must be met. Organizations should ensure that workers that are classified as independent contractors meet every test that is applicable to that particular work situation and location.

Typical situations where independent contractors may be appropriate are:

·       Short term projects or for a specific duration.

·       When specialized knowledge or experience is needed for a complex project.

·       To fill an urgent need, such as when an employee is on an extended leave of absence.

There is not a single test that can be applied in every situation, because of the various government agency rules or tests that must be met. Organizations should ensure that workers that are classified as independent contractors meet every test that is applicable to that particular work situation and location.

DOL: The DOL’s independent contractor rule (6 factors test) looks at totality of the working relationship with each factor bearing no more weight than any other.  

1.       The degree to which the employer controls how the work is done.

2.       The worker’s opportunity for profit or loss.

3.       The amount of skill and initiative required for the work.

4.       The degree of permanence of the working relationship.

5.       The worker’s investment in equipment or materials used for the task.

6.       The extent to which the service rendered is an integral part of the employer’s business.

IRS: The IRS looks at 11 factors that fall into three categories:

1.       Behavioral Control

2.       Financial Control

3.       Relational

NLRB: The National Labor Relations Board looks at the traditional common law factors:

·       Extent of employer control over work

·       Level of employer supervision

·       Is the worker engaged in a distinct occupation or business

·       Level of skill required

·       Are the tools and place of work provided by the employer

·       Duration of the workers relationship with the employer

·       Method of payment

·       Is the work performed part of the regular business of the employer

Determining employee or independent contractor status can not only be difficult, but failure to properly classify employees can lead to tax and insurance implications, back wages owed, fines and possible criminal charges. It is important that organizations have experienced human resources or other professionals that understand and are able to properly apply the tests and rules when classifying workers as employees or independent contractors to minimize legal risk. If your organization requires assistance in effectively classifying workers, Dunedin HR Solutions can provide expert guidance and support. We specialize in navigating complex workforce structures to ensure accurate and compliant classification. Contact us today to explore how Dunedin HR Solutions can contribute to your organization.



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