Q: An employee comes into you, has been characterized as an independent contractor for years. How can you help that person?
A: There are a lot of factors to be considered such as: How are you paid? Is there a written contract? What does the contract say? And as for the contract, it may be irrelevant because the law will not let an employer decide by contract whether a worker is an employee or independent contractor. In other words, you cannot just have a contract that says “you’re an independent contractor because I say you are. ”
You have to get behind the contract and see what the person is actually doing, what control the employer exerts over the worker, who is providing the tools and the instrumentality to do the job, whether the employee has to invest any money of their own into the equipment or materials, whether there is a special skill required to do this job.
All of those factors are examined. Ultimately control is the biggest issue, but all of these other issues definitely play a part, and we look at those on the employee’s side just as we look at those on the employer’s side.