Updated as of June 2018
An independent contractor is typically someone who can work from any location during a time of their choosing. They can work for multiple companies, using their own tools and resources, and are often paid on a project or flat fee-basis. An employee is someone who works specific hours at a location chosen by the employer. They generally work only for one company, use the employer’s tools and resources, and are paid a salary or an hourly wage.
While the above explanation might sound simple, it’s a bit more complicated than you think. We’ll walk you through the differences between the two and why they matter.
Independent contractor vs employee: How to tell the difference
While the IRS, the Fair Labor Standards Act, and the common law have all helped define the differences between an employee and an independent contractor, the difference between the two is not totally cut and dry.
The IRS generally assumes an employee relationship, but the line can sometimes be ambiguous.
This handy chart can help you figure out the difference between the two:
Why does it matter? Because employees…
An independent contractor:
Why does it matter? Because contractors…
However, these are not hard and fast rules. Other considerations also come into play when categorizing an employment relationship such as how permanent the relationship has been in the past and even how often the individual works for your company. Still scratching your head? Don’t worry. Just fill out Form SS-8 and the IRS will do all the deciding for you. Phew.
Why is the distinction between employee and independent contractor important?
There are several reasons why it’s crucial to properly categorize your team:
1. The law (not you) dictates who’s an independent contractor and who’s an employee.
Did your employee sign a contractor agreement, an employment agreement, or do they just show up a few days a week to help out? No matter what your arrangement is, your team’s employment classification is ultimately based on the nature of the work they do and how they do it.
2. Employees and independent contractors are treated differently for tax purposes.
Companies are expected to pay certain taxes on behalf of their employees. This includes employment tax for the state and federal government, Social Security tax, and premiums for workers’ comp and disability. On the flip side, companies don’t need to pay these taxes for independent contractors. Instead, contractors are responsible for their own “self-employment tax.”
Missed the memo? Time to get things in order. Improperly classifying your workers could make you liable for back taxes.
Similarly, if you incorrectly categorize an independent contractor they may be able to file an unemployment claim against you when their contract ends. Department of Labor requirements can also mean thousands of dollars in fines for accidental misclassification. Intentional or fraudulent misclassification of employees has led to hundreds of thousands of dollars in fines. No thank you.
3. Sometimes, independent contractors come with more liability.
You hear someone yell, “ouch!” around the corner. One of your employees just got hurt on the job, and you feel terrible. But if you correctly categorize them things probably won’t be so dire. How they’ll be able to recover often depends on their status, and in many cases, employees are the only ones who can receive workers’ compensation. Independent contractors, though, may be able to sue you under certain conditions, so make sure your workers’ comp policy is sealproof.
4. Employees are subject to different work expectations.
Some industries, like health care and education, are a jungle gym of rules and regulations that can have a real impact on your employees’ lives. This isn’t true across the employment spectrum, but if you’re in a highly specialized or professional industry, you may need to document additional rules surrounding the work your employees do.
Ultimately, it’s never a good idea to try to get around employment laws by falsely categorizing an employee as an independent contractor. Usually, you’ll be subject to consequences under the tax code, at the very least, and you may even be subject to a lawsuit in federal court, under certain circumstances. So just don’t do it.
When it comes to worker classification, the best thing you can do is be proactive, not reactive. Rather than waiting for a potentially precarious situation to occur, you should make it clear to your workers exactly how they will be classified from the start — and make sure their roles stay within the definitions provided by the IRS. It takes a bit of introspection and research to figure out how the two types compare, but once you get it down, your employee vs. independent contractor classification skills will put you at the top of your class.