Tuesday, August 5, 2008

Employee and independent contractor: A comparison

Often times, employers are confused on how to treat someone working for them, whether to treat them as employee or an independent contractor.

To avoid misconceptions and confusions, the California’s Employment Development Department (EDD), in partnership with the Internal Revenue Service (IRS) is offering a seminar on employment status issues.

This information had been the subject of the blog, “Employee versus Independent Contractor”. The author relayed that the seminar is available from time to time. An online webinar or CD is also available for free.

Well, this will be useful especially to employers. Knowing the difference between the two will greatly affect employer’s dealing on matters such as withholding of income taxes or withholding insurance or medical taxes.

My professors in law school taught me that in determining whether the person providing service is an employee or an independent contractor, the degree of control and independence must be considered.

An employer must have control over the employee’s means and method. Regardless what the employment contract states, if all evidence points to the existence of an employee-employer relationship, then that will hold true.

Now that I am practicing law myself, my guide is to examine the entire relationship and look into the degree or extent of the right to direct and control. Only after doing those steps that I can arrive at a conclusion.

The keys are to look at the entire relationship, consider the degree or extent of the right to direct and control, and finally, to document each of the factors used in coming up with the determination.