Can an employer tell a 1099 contractor how to do their job?
12
5
Whether someone is classified as an independent contractor or an employee is something that comes up frequently in labor law disputes. The US Dept. of Labor has clarified the standard for determining when a worker is an employee or an IC under the Fair Labor Standards Act. The 5 factors are:
- Whether the worker is in business for themselves or are they dependent on the employer.
- The opportunity a worker has for profit or loss. In other words, are they able to make as much or as little as they want.
- The investment made by the worker. Meaning, if the independent contractor relies on their own facilities, then they are more likely to be independent.
- The longevity of the worker's work relationship. The longer someone has worked for someone else, the more likely there is an employer-employee relationship.
- The degree of control the employer has. (e.g. if they have performance reviews).
- The level of skill or initiative required by the worker. If a position requires specialized skills, knowledge, or expertise that sets the worker apart from the general labor force, this may suggest that the worker is an independent contractor.
There is an in-depth description here - Independent Contractor Test
An employee who has been misclassified has some options. The general recommendation is that they:
a) speak with their employer;
b) get the IRS involved and file a claim for classification as an employee; and
c) file a complaint with their state department of labor.
Workers who believe they have been improperly classified as independent contractors can use IRS Form 8919, Uncollected Social Security and Medicare Tax on Wages, to figure and report their share of uncollected Social Security and Medicare taxes due on their compensation.
Upvote if this is a clear answer
Downvote if this is not a clear answer
Full Conversation
What can I do if I’m a 1099 janitor contractor in Raleigh, NC and the employer tells me what equipment to use, how I should do my job, and when I should and shouldn’t take a break?
I understand your concern. Are you classified as an independent contractor by your employer?
Yes
Have you experienced any other instances where your employer controls aspects of your work beyond what you've mentioned?
No
Is there anything else the employment lawyer should know before I connect you? Rest assured they'll be able to help with your employment classification.
Yes
Hello! Legal Eagle here, and I am an attorney specializing in your area of law. I am more than happy to help you with your situation!
So I haven't heard back from you in a while on this, which is no big deal! Without the information I asked for in my request, I can only give you this general answer:
Whether someone is classified as an independent contractor or an employee is something that comes up frequently in labor law disputes. The US Dept. of Labor has clarified the standard for determining when a worker is an employee or an IC under the Fair Labor Standards Act. The 5 factors are:
- Whether the worker is in business for themselves or are they dependent on the employer.
- The opportunity a worker has for profit or loss. In other words, are they able to make as much or as little as they want.
- The investment made by the worker. Meaning, if the independent contractor relies on their own facilities, then they are more likely to be independent.
- The longevity of the worker's work relationship. The longer someone has worked for someone else, the more likely there is an employer-employee relationship.
- The degree of control the employer has. (e.g. if they have performance reviews).
- The level of skill or initiative required by the worker. If a position requires specialized skills, knowledge, or expertise that sets the worker apart from the general labor force, this may suggest that the worker is an independent contractor.
There is an in-depth description here - Independent Contractor Test
An employee who has been misclassified has some options. The general recommendation is that they:
a) speak with their employer;
b) get the IRS involved and file a claim for classification as an employee; and
c) file a complaint with their state department of labor.
Workers who believe they have been improperly classified as independent contractors can use IRS Form 8919, Uncollected Social Security and Medicare Tax on Wages, to figure and report their share of uncollected Social Security and Medicare taxes due on their compensation.
Did you have any other details you needed addressed, or did you have any concerns in general you still needed addressed?
So I haven't heard from you in a while, but that's ok! I hope I’ve provided the information you were seeking.
