According to the New York Times, the IRS is cracking down on companies that try to pass off regular employees as independent contractors. More than two dozen states are cracking down on employers that improperly claim regular employees as independent contract workers. The federal government believes that enforcement could yield $7 billion during the next decade.
Among the most often misclassified workers are truck drivers, construction workers, home health aides and high-tech engineers.
As an independent contractor, there is no employer-employee relationship with the person or company that you are doing business with. The independent contract is a consultant who performs specific duties that the consultant is capable of performing.
At the start of the relationship, it is absolutely vital to have an independent contract agreement (also known as a consulting agreement) drafted to protect both parties. The consequences of failing to establish a consultant as an independent contractor can have dire tax consequences.
In your independent contractor agreement, it is important to establish that the consultant performing the services is not under the control of the employer. In addition, the employer may not directly supervise the consultant.
When it comes time to draft an independent contractor agreement, you should focus on the fee for services rendered and provide a complete description of the services that are to be provided.
According to IRS, you should be aware of the following common law factors when it comes to providing evidence as to degree of control:
Behavioral: Does the company control or have the right to control what the worker does and how the worker does his or her job?
Financial: Are the business aspects of the worker’s job controlled by the payer? (these include things like how worker is paid, whether expenses are reimbursed, who provides tools/supplies, etc.)
Type of Relationship: Are there written contracts or employee type benefits (i.e. pension plan, insurance, vacation pay, etc.)? Will the relationship continue and is the work performed a key aspect of the business?
If you have a legal question regarding independent contractors in New York, contact the Law Office of Frederic R. Abramson at 212-233-0666