During the pandemic, our country saw a shift from the traditional 9 -5 employees to the gig economy, with companies looking at hiring independent contractors instead of employees.
We have seen entire companies, like Uber and Lyft, where the business model is structured with independent contractors. But we also see businesses utilize independent contractors for CFO positions, for marketing, public relations and for sales.
For both parties, the independent contractor relationship can be beneficial. For individuals, it provides freedom for work. An independent contractor can work when they want and for who they want. There is very little control the company can exert over the independent contractor.
From a business perspective, the tax burden is significantly lower as you do not withhold any taxes or pay any employment taxes, and the independent contractor is responsible for equipment, such as computers and phones.
While there are advantages, a miscalculation can be serious. If you treat an independent contractor like an employee, you could be responsible for a significant payout for wages and taxes if the contractor decides to take the case to court. The state can also pursue your business for other fees.
It is always better to take preemptive steps to ensure the people working for your business are properly classified. We urge you to have The Orlando Law Group review your contractors and their duties to make sure they are within the current law. We will create contracts that outline the responsibilities of each party and the goals of the contract. We will create an employee manual that covers the difference between the employee statuses and will provide rules to the extent that you can for contractors.
Unfortunately, however, what determines who is an independent contractor has changed significantly over the past couple of years by the United States Department of Labor.
The Orlando Law Group is carefully watching these developments to make sure our clients are protected. If you need help with independent contractors in Orlando, Winter Garden, Altamonte Springs, St. Cloud, Kissimmee, Sanford or throughout Central Florida, we are here to help you with a full team of attorneys who are business owners themselves.
In March 2021, the federal government issued new rulings detailing a set of factors that come into play when determining whether a worker is an employee or an independent contract. However, case law in this issue has been set over decades of cases that the federal government needs to look at the totality of the case and that all factors are equal.
The current orders give precedence to some factors over others. Shortly after issuing the new regulations, they realized it would be confusing for businesses and would take years to get new case law that allows for some factors to have more importance than others.
The result? New regulations will be enacted in some format during 2023.
One thing that has not changed is the overriding theme of what constitutes an employee or an independent contractor: economic dependence is the ultimate inquiry for determining whether a worker is an independent contractor or an employee.
This year, the Department of Labor has proposed six factors, all being held equally in an “Economic Reality Test.” The factors are:
- Opportunity for profit or loss. If the individual can control its profit or loss based solely on the skills, management and initiative of the individual. For instance, an independent contractor can hire others to do the work in the contractor. An employee cannot.
- Investments by the Worker and the Employer. This is straightforward. If the company is providing the equipment and other items needed to complete a job, like design software for a graphic artist, the individual is an employee. An independent contractor provides their own tools for their work.
- Degree of Permanence of the Work Relationship. Is the relationship temporary or indefinite? For employees, there usually is no end date and can be terminated at any time by either party. Usually, an independent contractor is only engaged for a specific period.
- Nature and Degree of Control. The new rule could be very specific for this one. Do you have substantial control over things like “setting schedules, selecting projects, controlling workloads, and affecting the worker’s ability to work for others?” If so, the person is an employee, not an independent contractor.
- The Extent to Which the Work Performed is an Integral Part of the Employer’s Business. It’s difficult to say what is truly integral to the company business, but you could think of it as if you removed the employee from the company, how detrimental it would be to your bottom line and the ability to produce.
- Skills and Initiative. Does the work performed by the individual require specific skills and training? If so, do you provide that training to the individual? If you do, chances are that person is an employee, not an independent contractor.
While the federal government has ended public comment, these are not the final rules and they could change when the Department of Labor issues the final rulings. It is important for you to know the regulations on this subject are changing and you should be prepared to make any adjustments.
You can read significantly more details about the proposed rule change in the Federal Registry here. But, that is what The Orlando Law Group does for its clients.
The attorneys at The Orlando Law Group represent business clients in Orlando, Waterford Lakes, Altamonte Springs, Winter Garden, Lake Nona, Sanford, St. Cloud, Kissimmee, and throughout Central Florida.
If you have a question about your employees and whether they are independent contractors, please reach out to our office at 407-512-4394, fill out our online contact form or save this information in case you ever find yourself or a loved one needing to use it. We provide representation and legal services for both businesses and individuals alike.
If you have questions about anything discussed in this article or other legal matters, give our office a call at 407-512-4394 or fill out our online contact form to schedule a consultation to discuss your case. We have an office conveniently located at 12301 Lake Underhill Rd, Suite 213, Orlando, FL 32828, as well as offices in Seminole, Osceola and West Orange counties to assist you.
The articles on this blog are for informative purposes only and are no substitute for legal advice or an attorney-client relationship. If you are seeking legal advice, please contact our law firm directly.
Last Updated on January 13, 2023 by The Orlando Law Group