Misclassification is a very hot issue these days, according to Attorney Deanna Brinkerhoff. First, there is the issue of exempt and nonexempt. We must always apply the salary basis test and the duties tests to double-check any decision about exemptions.
The other challenge under misclassification is the independent contractor vs. employee problem. Among the factors that the U.S. Supreme Court has considered significant are:
- The extent to which the services rendered are an integral part of the principal’s business
- The permanency of the relationship
- The amount of the alleged contractor’s investment in facilities and equipment
- The nature and degree of control by the principal
- The alleged contractor’s opportunities for profit and loss
- The amount of initiative, judgment, or foresight in open market competition with others required for the success of the claimed independent contractor and
- The degree of independent business organization and operation.
Other factors that may suggest an independent contractor relationship are:
- The person works for others
- The person hires his or her own staff – if you do the hiring, it doesn’t sound like an independent contractor relationship
- The person pays his or her own business expenses
- The person is given a project, not detailed how-to instructions