Independent contractors are (1) independent and (2) contractors

shutterstock_323901203My last post gave a rule of thumb to tell employees from independent contractors. I said that if you have to ask, they’re employees. Here’s a little more detail.

The technical definitions of independent contractor and employee are not just technical but unhelpful. A law book will say that the employees have no control over the “manner and means of accomplishing the result desired.” Independent contractors, on the other hand, control the means of accomplishing the result, but the person hiring them still gets to control the result.

Anyone thinking that these definitions sound like gobbledygook is in good company. Like many legal rules, they don’t really say anything. They just lead to arguments about where “the result of the work” begins and “the means of accomplishing the result” ends. Logicians call this argument a “semantic dispute.”

Fortunately, courts and lawyers have come up with a much more useful distinction. Independent contractors have their own business. Employees work for the employer.

Here’s an example. Painters I get to paint my office are independent contractors:

  • The painter isn’t doing my work. My clients hire me to represent them in legal disputes, not to paint.
  • Painters have skills I don’t. They can paint my office better and faster than I can.
  • Painters only paint and nothing else. I won’t ask them to fix the plumbing or the roof, much less to make telephone calls or to go to the courthouse for me.
  • Painters have the equipment. I do not have the ladders or the right brushes.
  • Painters work on their own schedule. They paint my office when they can fit me in.
  • I don’t care who else they paint for.
  • Once my office is painted, they do nothing more for me until something else needs painting.

Now look at what makes someone an employee:

  • Employees do the work that customers pay the employer for. Sprig‘s customers pay it to deliver organic meals, so the people delivering the meals are employees.
  • Employees provide no special skills to the employer. Anyone getting on-the-job training is an employee.
  • Even specially skilled workers are employees if others do the same work. Airlines have many mechanics, all employees.
  • Employees may do several things for an employer. Do you meet with customers, create social media, and take out the garbage? You’re an employee.
  • Employees get scheduled by their employers. Employers tell employees to come in at 10:00 or next Tuesday.
  • Anyone who can’t work for a competitor is an employee. Google software employees can’t work for Facebook.
  • Anyone who can’t be expected to hold another real job is an employee. A 30-hours-weekly IT guy is an employee.
  • When employees finish doing one thing, they go on to the next. Employers give employees to-do lists.

In my next post, I will explain the worst mistake a business can make to make sure that someone working for it is an independent contractor.

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One Response to Independent contractors are (1) independent and (2) contractors

  1. Pingback: How Not to Make Sure Someone Is an Independent Contractor | legal jellyfish

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