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May 11, 2010
Tests to Determine Independent Contractor Classification

In a BLR webinar entitled ‘Employee versus Independent Contractor: Where’s the Line? How to Make the Proper Call and Stay Out of Court’, Maria Anastas discusses the importance of properly classifying independent contractors. She provides the following information regarding definitions and tests for independent contractors:

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  • There is really no absolute definition of an independent contractor
  • Different agencies can have varying definitions and tests associated with independent contractors
  • Independent contractors are generally referred to as contingent workers
  • There are many tests to determine if an individual is an independent contractor or an employee
  • Each test is fact intensive. There could be hundreds of facts that an agency may need to learn to determine if an individual is an employee or an independent contractor
  • Many of the tests are an attempt to determine the degree of control the employer has or will have on the individual. The more control that the business has over the individual, the less likely that the business will be able to claim that the individual is an independent contractor
  • The results of the tests differ depending on the purpose e.g. Internal Revenue Service (IRS), worker’s compensation, unemployment, federal statute, etc.
  • Generally, each test focuses on the ‘degree of control’ exercised by a firm over an individual
  • Each test depends on the totality of circumstances

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 handles union organizing drives and corporate campaigns, collective bargaining and arbitration, and proceedings before the National Labor Relations Board (NLRB). She also devotes a substantial portion of her practice to providing employers with practical advice on a wide variety of employment law issues. She can be reached at maria.anastas@ogletreedeakins.com.

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