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Employee or Independent Contractor? The Tests Agencies Use

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Whether you are an employee or contractor affects taxes, overtime, benefits and legal protections. A contract label does not decide it. The facts do.

Common factors

  • How much control the company has over how and when you work.
  • Who provides tools and equipment.
  • Whether you can make a profit or loss.
  • Whether you work for others.
  • Permanence of the relationship.
  • Whether the work is central to the business.

Why it matters

  • Employees get minimum wage, overtime, unemployment insurance and workers' compensation.
  • Contractors pay their own self-employment taxes.
  • Employers face penalties for misclassification.

Different tests

Federal agencies and states use different tests, and some states use a stricter "ABC" test. A worker can be an employee under one law and a contractor under another.

If you think you were misclassified

  1. Record your hours, duties and control by the company.
  2. Save contracts, pay records and messages.
  3. Ask your employer to review your classification.
  4. File a complaint with your state labor agency or the U.S. Department of Labor, or ask the IRS to determine status.
  5. Consult an employment attorney.

Frequently asked questions

Can I be both?

You can work as a contractor for some clients and an employee for another.

What can I recover?

Possibly back wages, overtime and benefits, depending on the law.

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