The Ticktin Minute October 23, 2017 – Independent Contractor vs. Employee (Behavioral Factors)

Independent Contractor vs. Employee (Behavioral Factors)

One of the cornerstones of employment law is determining whether an individual is providing an employer with services as an employee or an independent contractor. There are three sets of factors that are analyzed to determine whether an individual is an employee or independent contractor: (1) Behavioral; (2) Financial; and (3) Type of Relationship. Each of these factors is analyzed and an overall answer is determined based on the examination. There is no one right answer, each situation will be different. Depending on whether the individual is declared to be an employee or independent contractor, certain employment laws would apply.

As a generality, employees typically have more rights than independent contractors since they are under the direct supervision or control of the employer. One major factor determining whether an individual is an employee or independent contractor is the degree of instruction that the employer gives the worker. Such degree of instruction is considered under the wing of behavioral factors. For instance, If the individual comes to one (1) office each day on a 9am-5pm schedule (without variance), then that fact would sway towards that worker being an employee. However, if the individual works from home and/or can make their own schedule, then that would waver towards that worker being an independent contractor. Another example would be whether or not the employer dictates which tools and/or equipment is required for the job. Further, if the individual has discretion over the method in which they complete the tasks required, then this is more indicative of an independent contractor relationship. However, if the employer conveys to the individual how to complete each task (or provides training to that effect), then that worker will more likely be categorized as an employee. These behavioral factors are very subjective and should be assessed on a case-by-case basis.

Contact The Ticktin Law Group if you or someone you know have any employment law questions. The Employment Law Attorneys of The Ticktin Law Group offer complimentary consultations.