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The extent of control which (by agreement between the employer
and the worker) the business may exercise over the details of the
work
If the employer retains the right to dictate how the work should be
done, the worker is an employee. If the employer decides what work
the worker will do and how the worker will do it, then the worker is
an employee. When an employer hires an independent contractor, the
employer is normally interested only in the end result, not the
details of how the contractor performs the work.
An independent contractor is not subject to the will and control of
the employer.
The employer can decide what results are expected from the
independent contractor, but cannot control the methods used to
accomplish those results. This factor is the most important of the
10 determining factors.
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Whether the one employed is engaged in a distinct occupation or
business
A person engaged in a distinct occupation or business is more likely
to be an independent contractor if the occupation or business is
separate and distinct from the employer's business.
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Whether the work done in a certain locality is usually done under
the direction of the employer or by a specialist without
supervision
If the work is usually done in that locality under the direction of
an employer, then the worker is more likely to be an employee. If
the work in that locality is usually done by a specialist without
supervision, then the worker is more likely to be an independent
contractor.
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The skill required in the particular occupation
The greater the skill required for the occupation, the more likely
the worker is an independent contractor. A contract for labor only
will normally be considered a contract of employment while the
hiring of a licensed professional is more likely to be considered
the hiring of an independent contractor.
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Whether the employer or the worker supplies the instrumentalities
(for example: equipment, vehicle, materials), tools, and the place
of work for the person doing the work
Independent contractors are generally expected to provide or
purchase everything they need to do the job. Employees are not
expected to provide their own workplace, materials, tools, and
supplies, or to otherwise invest their own money in the business.
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The length of time the person is employed
The more long-term, continuous, and exclusive the relationship is,
the more likely it is to be employment.
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The method of payment, whether by the time or by the job
Independent contractors generally perform their work one job at a
time and are paid by the job. An employee is paid for his time.
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Whether the work is a part of the regular business of the
employer
If the service provided by the worker is an integral part of the
service the employer provides to the public, the worker is more
likely to be an employee. If certain services are so essential to a
business that it will succeed or fail based upon how well those
services are performed, the business will often want to exercise
enough control over the services to ensure they are good. That can
make a business the employer of such workers.
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Whether the parties believe they are creating the relationship of
employer and employee
If there is a written agreement between the parties describing the
relationship it should be honored unless other provisions of the
agreement, or the actual practice of the parties, show that the
agreement is not a valid description of the working relationship. If
the actual practice of the parties shows an employee relationship,
an agreement which describes the worker as an independent contractor
will be disregarded. How the worker is treated, not the language of
a written agreement or the issuance of a 1099, determines whether
the worker is an employee or an independent contractor.
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Whether the hiring party is or is not a business
If the hiring party is a business, it is more likely that the worker
is an employee. If the hiring party is an individual, the worker is
more likely to be an independent contractor.
