Payroll Common Law Questions for International Visitors

International Visitor

20 Common Law Questions

There are 20 factors used by the IRS to determine whether you have enough control over a worker to be an employer. Keep in mind that, in theory, you should only be concerned with the results of the work, not the way in which it's performed. Though these rules are intended only as a guide- the IRS says the importance of each factor depends on the individual circumstances- they should be helpful in determining whether you wield enough control to show an employer –employee relationship. If you answer, "Yes" to all of the first four questions, you're probably dealing with an independent contractor; "Yes" to any of the questions 5 through 20 means your worker is probably an employee.

1. Profit or loss. Can the worker make a profit or suffer a loss as a result of the work, aside from the money earned from the project? (This should involve real economic risk-not just the risk of not getting paid.)

2. Investment. Does the worker have an investment in the equipment and the facilities used to do the work? (The greater the investment, the more likely independent contractor status.)

3. Works for more that one firm. Dose the person work for more that one company at a time? (This tends to indicate independent contractor status, but isn’t conclusive since employee can also work for more than one employer.)

4. Services offered to the general public. Dose the worker offer services to the general public?

5. Instructions. Do you have the right to give the worker instructions about when, where, and how to work? (This shows control over the worker.)

6. Training. Do you train the worker to do the job in a particular way? (Independent contractor are already trained.)

7. Integration. Are the workers services so important to your business that they have become a necessary part of the business? (This may show that the worker is subject to your control.)

8. Services rendered personally. Must the worker provide the service personally, as opposed to delegating task to someone else? (This indicates that you are interested in the methods employed, and not just the results.)

9. Hiring assistants. Do you hire, supervise, and pay the assistants? (Independent contractor hire and pay their own staff.)

10. Continuing relationship. Is there an ongoing relationship between the worker and yourself? (A relationship can be considered ongoing if services are performed frequently, but irregularly.)

11. Work hours. Do you set the worker's hours? (Independent contractor are master of his or her own time.)

12. Full-time work. Must the worker spend all of his or her time on the job? (Independent contractor choose when and where they will work.)

13. Work done on premises. Must the individual work on your premises, or do you control the route or location where the work must be performed? (Answering no doesn’t by itself mean independent contractor status.)

14. Sequence. Do you have the right to determine the order in which services are performed? (This shows control over the worker.)

15. Reports. Must the worker give you reports accounting for his or her actions? (This may show lack of independence.)

16. Pay schedules. Do you pay the worker by the hour, week or month? (Independent contractor are generally paid by the job or on commission, although by industry practice, some are paid by the hour.)

17. Expenses. Do you pay the worker's business or travel costs? (This tends to show control.)

18. Tools and Materials. Do you provide the worker with equipment, tool or material? (Independent contractor generally supply the materials for the job and use their own tools and equipment.)

19. Right to fire. Can you fire the worker? (An independent contractor can't be fired without subjecting you to the risk of breach of contract lawsuit.)

20. Worker's right to quit. Can the worker quit at any time, without incurring liability? (An independent contractor has a legal obligation to complete the contract.)