What, exactly, constitutes an independent contractor depends on who you ask. Even the Labor Department’s website notes that the National Labor Relations Board, the Civil Rights Act, the Fair Labor Standards Act and the Employee Retirement Income Security Act—each major labor and employment statute, in fact—“has its own way of drawing the line between employees and independent contractors.” Their language is often “vague or circular,” the department concedes, “leaving them open to a broad range of interpretations.”
What is clear, though, is that companies are required to make that distinction, to offer employees statutorily required benefits and to pay the required employment taxes. Those who make a mistake in employment classification risk running afoul of tax law, wage and hour regulations, as well as other employment laws like OSHA (Occupational Safety and Health Act) and FMLA (Family and Medical Leave Act). A wide range of penalties may be imposed and there’s even the possibility of benefit plan disqualification. Reputations can crumble.
Various government agencies, including the Internal Revenue Service, offer guidance to help companies narrow the interpretation, but even these differ slightly from agency to agency. Not surprisingly, according to a study by Deloitte, only 19 percent of executives believe their businesses fully understand the labor and employment laws that govern contingent workers. While many companies employ a work-hour threshold—with workers logging more than 30 hours a week considered employees—this approach is too simplistic.
The most important aspect in determining if a worker is full-time or contingent—for legal purposes—is control. “Who controls the where, when and how of a particular task—the employer or the worker?” explains Nicholas Woodfield, principal and general counsel of The Employment Law Group, a law firm representing people with legal claims against employers. Woodfield cites restaurant and retail workers as examples. “If these people must keep strict hours in a particular location and must dress and act in very specific ways; then, no matter how you cut it, they will almost certainly be considered employees and not independent contractors. In employment law, if it looks like a duck, walks like a duck and quacks like a duck, most authorities will decide it’s a duck.”
The upshot for employers is to proceed cautiously. “You can’t just decide to call someone an ‘independent contractor,’” warns Woodfield. “This isn’t something that parties can settle purely between themselves. An ‘independent contractor’ is a legal term that either applies to a situation or does not apply.” To ensure the status of an independent contractor from a regulatory standpoint, employers must be ready and willing to relinquish control, insofar as how these workers dress, what tools they use, how long they work and who else they might do work for. “The more rules you want to set, the less likely you’ll have an independent contractor,” Woodfield warns.
The bottom line? Employers looking to leverage the gig economy should play it safe. “If you’re not sure whether it’s okay to treat someone as an independent contractor, ask an attorney,” says Woodfield. “If the attorney isn’t sure, just treat the worker as an employee. Any other decision is asking for trouble.”