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Is Your Worker an Independent Contractor or Employee?

By Kristine Sova

Last week, I spoke to a group of arts administrators at a professional development session hosted by ArtsWestchester (https://artswestchester.org/?utm_source=Sova+Law+Blog+Newsletter&utm_campaign=8a5694904e-RSS_EMAIL_CAMPAIGN&utm_medium=email&utm_term=0_eff3a758ca-8a5694904e-62893717) and the EASL Section (http://www.nysba.org/Sections/Entertainment_Arts_Sports/Entertainment_Arts___Sports_Law_Section.html?utm_source=Sova+Law+Blog+Newsletter&utm_campaign=8a5694904e-RSS_EMAIL_CAMPAIGN&utm_medium=email&utm_term=0_eff3a758ca-8a5694904e-62893717) on the distinction between employees and independent contractors. We covered a lot of information during the session, including:

• the hefty financial consequences of misclassification,
• the need to conduct preventative internal audits to make sure you're not misclassifying your workers, and
• the independent contractor tests utilized by various administrative agencies like the Internal Revenue Service and the New York Department of Labor's Unemployment Insurance Division.

Knowing those tests, though, is only so helpful to an organization or business that wants to know if a particular worker is an employee or an independent contractor. This is because how a particular worker should be classified requires a comprehensive fact-and-circumstances inquiry unique to the organization.

How comprehensive, you might ask? Click here for the kinds of questions I would ask and you'll see: http://sovalaw.com/blog/wp-content/uploads/2014/05/Independent-Contractor-Questionnaire.pdf?utm_source=Sova+Law+Blog+Newsletter&utm_campaign=8a5694904e-RSS_EMAIL_CAMPAIGN&utm_medium=email&utm_term=0_eff3a758ca-8a5694904e-62893717.

The questions are based on factors that the IRS and NY DOL would consider if either or both of them were to audit your workforce. Use the questions as a starting point for your own internal audit, and consult with an employment attorney once you have gathered your answers for an opinion on whether the worker in question is really an independent contractor.

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This page contains a single entry from the blog posted on May 9, 2014 10:43 AM.

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