Misclassifying employees as independent contractors can be an extremely expensive proposition for employers implicating federal, state, and local taxes, workers’ compensation premiums, employee compensation and even the employee’s right to organize under the National Labor Relations Act. Most federal and state agencies have their own tests for an independent contractor and many such tests of this are the subject of judicial interpretation.
Recently the National Labor Relations Board reverted to a more stringent definition of an independent contractor in the case of The Atlanta Opera N.L.R.B., Case 10-RC-276292. In its decision, the NLRB held that makeup artists, wig artists and hairstylists working at the Opera where statutory employees under the NLRA. The NLRB adopted the common-law factors found in the restatement of agency. These factors are (a) the extent of control which, by the agreement, the master may exercise over the details of the work; (b) whether or not the one employed is engaged in a distinct occupation or business; (c) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision; (d) the skill required in the particular occupation; (e) whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work; (f) the length of time for which the person is employed; (g) the method of payment, whether by the time or by the job; (h) whether or not the work is a part of the regular business of the employer; (i) whether or not the parties believe they are creating the relation of master and servant; and (j) whether the principal is or is not in business. The Board also considered whether the independent contractor was rendering services as part of a separate independent business.
For more information as to whether your independent contractor is in fact an employee, contact any member of the SSEG Human Resources, Labor Law, Employment Law practice group.
https://sseg-law.com/practice-groups/human-resources-labor-employment/