So you are an independent contractor -maybe?

March 05, 2014 (Press-News.org) So you are an independent contractor -maybe?

Article provided by Orshansky & Yeremian LLP
Visit us at http://www.yeremianwagelaw.com/

So the church budget is tight--when is it not--but the days of volunteers keeping the church facilities clean is obviously over. Time to hire someone to keep the place clean. For some churches, an obvious choice may be to hire someone as an independent contractor. No withholding for federal or state income taxes, no withholding for FICA, no fringe benefits, and less paperwork and recordkeeping.

Or perhaps a small business experiences a sudden uptick in business and needs additional help. The hiring is expected to be only temporary--why hire a regular employee, set up payroll, direct deposit, offering benefits, paying unemployment insurance premiums. The inclination may be to hire someone at an hourly rate, label him or her an independent contractor, and call it a day.

From a worker's standpoint, despite a potential loss of benefits like health care, or vacation, the biggest impact is that the employer is not responsible for the employer's share of FICA--but that doesn't mean it goes unpaid. If the worker is an independent contractor, he or she is responsible to pay it all.

According to legalnews.com, the IRS is certainly on the alert for abuses of the misclassification of workers as an independent contractor. As a general rule, the key to determine whether a person is truly an independent contractor as opposed to an employee is control. Does the employer control when, where and when the work is done? Does the employer provide supplies and direct the employee where and what to purchase? The more control an employer exercises in the day-to-day operation, the less likely that person is an independent contractor. Also important is whether the individual has a financial interest in the work being performed. Does he or she provide their own tools, or have a potential to control a profit or loss from the worked being performed? Can the worker do other jobs for others, or is the work exclusive to the activity being performed. Is he or she paid by the project or by the hour? And perhaps the most important question--is there another worker essentially doing similar work under similar circumstances who is treated as an employee?

The lines between who is an employee and who is an independent contractor are not always bright and can be blurry, subject to interpretation, and certainly subject to judgment. If you believe that you have been misclassified as an independent contractor, you need to seek the expert advice of an experienced California employment lawyer who can analyze the circumstances of each case.