I’m Not His Employee

Another update from the Jungle….
image011Addison works for Rob, who has a consulting business. (We met Rob in last week’s post.) The work is sporadic and project-based but she likes it that way because she’s a free spirit. Addison worked for large corporations for many years and is happy to be on her own now.

She does project-based work for several businesses, including Rob’s, and also has a few clients of her own. She dislikes sales and prospecting for clients because she prefers to focus on the work. She likes working for Rob because he pays quickly and the projects allow her plenty of scope for imagination.

Today when she stopped by Rob’s office to discuss the next project, she found him in a strange mood and slightly hung over from overindulging in Gentleman Jack. Rob began talking about financial problems. At first Addison thought he was telling her that he was insolvent. Then she realized he was talking about some new policy of the U.S. Department of Labor (DOL).
image015The DOL recently said that it would no longer use the “control” test to determine if a worker is an independent contractor (1099 worker) or an employee (W-2 worker). Instead, the DOL plans to use an “economic reality” test. This new test has a number of factors but can be summed up by saying that if a worker is economically dependent on the employer, then the worker is a W-2 and not a 1099.

Addison accepts Rob’s offer of a shot of Gentleman Jack, although she prefers Buffalo Trace, and they sit in a gloomy silence as they contemplate what the new test means for each of them. Addison dreads the idea that she could again be classified as a W-2 because she likes being free to work at her pace and only on things she enjoys doing.

What should Addison do next?

  1. She can explain to Rob that she has other clients in addition to the work she does for him and so she thinks that she truly is an independent contractor.
  2. She can incorporate her business now that she has the money to do so rather than continuing to operate as a d/b/a. Incorporating is additional proof that she is running her own business.
  3. She can wait to make any changes until she has more information.

If your company is struggling with HR issues, Corporate Compliance Risk Advisor can help you create HR policies that are appropriate for your company’s size and then serve as a resource to your staff as the policies are implemented.

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