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Employee or Independent Contractor – A Primer for Employers and Employees

Hiring independent contractors can offer businesses flexibility and cost savings. But misclassifying an employee as an independent contractor can lead to significant legal and financial trouble. This article will explain the key differences between employees and independent contractors, the factors the IRS considers when making this distinction, and the potential consequences of misclassification.

Employee vs. Independent Contractor: A Clear Distinction

The core difference lies in control. An employee is someone you direct and control how they perform their work. You set their schedule, provide tools and equipment, and have the authority to dictate how tasks are completed. In contrast, an independent contractor is a separate business entity. You hire them to achieve a specific result, but they have the freedom to decide how to achieve it.

The ABC Test: A Three-Pronged Approach

Several states have adopted the ABC test to determine worker classification. A worker is considered an independent contractor if they meet all three of these conditions:

  • A: The worker is free from your control in performing the work, both under the contract and in practice.
  • B: The worker performs work outside the usual course of your business.
  • C: The worker is customarily engaged in an independently established trade similar to the work performed for you.

Beyond the ABC Test: A Multi-Factor Analysis

The IRS uses a broader test that considers various factors beyond the ABC test. These factors fall under three main categories:

  • Behavioral Control: Does your business dictate work hours, tools, and methods?
  • Financial Control: Does the worker have significant business expenses, own their equipment, and set their own rates?
  • Type of Relationship: Is there a written contract? Does the worker receive benefits like health insurance?

The Benefits and Risks of Each Classification

There are advantages and disadvantages to both classifications:

  • Employee Benefits: You pay payroll taxes and provide benefits, but gain control and direction over the work.
  • Independent Contractor Benefits: You avoid payroll taxes and benefits, but relinquish some control over the work.

Workers also have a stake in classification:

  • Employee Benefits: They receive benefits and workplace protections, but have less control over their work.
  • Independent Contractor Benefits: They have flexibility and control, but are responsible for their own taxes and benefits.

When in Doubt, Seek Clarification

If you’re unsure about a worker’s classification, you can file Form SS-8 with the IRS to request a determination.

The Price of Misclassification

Misclassifying an employee as an independent contractor can be costly for both parties:

  • Business Penalties: You may owe back taxes, penalties, and even face legal action.
  • Employee Penalties: The worker may be liable for self-employment taxes and miss out on employee benefits.

The Voluntary Classification Settlement Program (VCSP)

The IRS offers the VCSP program for businesses to reclassify workers as employees and receive partial tax relief.


Proper worker classification is crucial to avoid legal and financial trouble. By understanding the key differences, the factors the IRS considers, and the potential consequences of misclassification, you can make informed decisions about your workforce.

If you have any questions or require assistance in determining worker classification, please don’t hesitate to contact us.

JS Morlu LLC is a top-tier accounting firm based in Woodbridge, Virginia, with a team of highly experienced and qualified CPAs and business advisors. We are dedicated to providing comprehensive accounting, tax, and business advisory services to clients throughout the Washington, D.C. Metro Area and the surrounding regions. With over a decade of experience, we have cultivated a deep understanding of our clients’ needs and aspirations. We recognize that our clients seek more than just value-added accounting services; they seek a trusted partner who can guide them towards achieving their business goals and personal financial well-being.
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