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May 06, 2010
Independent Contractor or Employee? Factors to Consider

In a BLR webinar entitled "Exemption Audits: Prepare Now for Stepped-Up Department of Labor (DOL) Enforcement--Who's Entitled to Overtime and Who's Not," Cheryl D. Orr, Esq. partner and co-chair of the national Labor and Employment Practice Group at Drinker Biddle & Reath LLP explained that, if a contractor vs. employee status is challenged, the rebuttable presumption by the Internal Revenue Service (IRS) is that the worker is an employee. Factors to consider when determining the classification include:

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  • How key are the services provided?
  • Does the worker have business cards and/or a phone extension?
  • Does the worker have dictated office hours?
  • What are the worker's reporting requirements and how much control does the person have?
  • Who provides the supplies necessary to do the job?
  • Are expenses being reimbursed?
  • Are there restrictions on competition?

Cheryl D. Orr, Esq. is a partner and co-chair of the national Labor and Employment Practice Group at Drinker Biddle & Reath LLP. She concentrates her practice on defending employers against FLSA collective actions and state and federal wage and hour class actions. She regularly litigates discrimination, harassment, and unfair competition claims, conducts high-level workplace investigations, develops plans for reductions in force and offers employer advice and counseling.

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