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May 12, 2010
Internal Revenue Service Behavioral Independent Contractor Test

Maria Anastas discussed the Internal Revenue Service (IRS) behavioral independent contractor classification test in a BLR webinar entitled ‘Employee versus Independent Contractor: Where’s the Line? How to Make the Proper Call and Stay Out of Court’. She states that ‘behavioral control’ relates to facts that show whether the business has a right to direct and control how a worker performs job functions. This includes the degree or level of the following:

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  • Instructions that the business gives to the worker: An employee is generally subject to the business's instructions about when and where to do the work, what tools or equipment to use, what workers to hire or to assist with the work and where to purchase supplies and services. It also includes what work must be performed by a specified individual, and what order or sequence to follow. Even if no instructions are given, sufficient behavioral control may exist if the employer has the right to control how the work results are achieved. The key consideration is whether the business has retained the right to control the details of a worker's performance or instead has given up that right
  • Training that the business gives to the worker : An employee may be trained to perform services in a particular manner. Independent contractors normally use their own methods

Maria Anastas is a partner in the San Francisco office of law firm Ogletree, Deakins, Nash, Smoak & Stewart, PC (www.ogletreedeakins.com ). She represents employers in labor and employment law matters exclusively, with a primary emphasis on traditional labor matters. She can be reached at maria.anastas@ogletreedeakins.com.

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