Learn how to classify staff: contractor or employee
Watch the video to learn how to classify your staff.
Why proper classification matters
Employees and contractors are treated very differently under federal and state law.
Contractors are considered independent and pay their own employment taxes. Their employer usually has fewer legal obligations for them, such as providing paid time off.
Employees are subject to employment taxes and benefits.
Child care business owners sometimes choose to classify staff as a contractor, even though they should be an employee. The problem is that the classification isn’t up to the employer. There are rules that determine if staff should be classified as an employee or a contractor.
Misclassification of staff can cost you money. If you make a misclassify staff, you may be liable for:
- 100 percent of the employer taxes you should’ve been contributing.
- A portion of the employee’s contribution to payroll taxes. The employer has to pay a portion of the taxes they wouldn't have paid in the first place.
- Subject to criminal fines.
- The price of any missed benefits and other compensation such as paid time off that the worker didn’t get as a contractor.
The three key elements
When determining if you have a contractor or employee, look at the three key elements of the definition of employment:
Service
Does the person work on a contractual basis or on short-duration projects like a contractor? Does the person work for other businesses or just for you?
Wages
How is the person paid? Is the person paid every week for a set number of hours (which indicates an employee), or does the work vary (like a contractor)? Do they have regular expenses that are reimbursed (like an employee)?
Direction
How much control do you have over the person's day-to-day work? Do you set requirements around the hours of work, what equipment or tools need to be used, or the training needed? If yes, then this person is likely an employee.
20-point comparative approach
Use the 20-point comparative approach to help you determine the correct classification. Go through all examples below for each worker you have. If most of the answers are in the “employee” column, you probably have an employee. If not, you may have a contractor. When in doubt, ask a human resources professional.
For more information also review guidance from the state of Texas - https://www.twc.texas.gov/businesses/classifying-employees-independent-contractors.
| Common Law Factors | Employee | Contractor |
|---|---|---|
| Receives instructions on when, where, and how work should be performed | Does the job with little to no instruction |
| Trained by a more experienced employee, required to attend meetings, or take training courses | Uses their own methods doesn't receive training from the employer |
| Services of an employee are usually merged into the employer's overall operation and the employer's success depends on the employee services | Services are usually separate from the client's business and are not integrated or merged into it |
| Employees don't hire their own substitutes or delegate work to them | Can assign someone else to do the job in their place and doesn't need to personally perform services |
| An employee may act as a foreman for the employer but, if so, helpers are paid with the employer's funds | Selects, hires, pays and supervises any helpers used and is responsible for the results of the helpers' labor |
| Continues to work for the same employer month after month or year after year | Usually hired to do one job of limited or indefinite time and has no expectation of continuing work |
| May work "on call" or during hours and days as set by the employer | Manages their own time and works the days and hours they choose |
| Dedicates full-time service to the employer, or the employer has a priority on the employee's time | Cannot be required to devote full-time service to one employer exclusively |
| Employer mandates where services are performed | Work where they choose, workplace may be away from client's premises |
| Performs services in the order or sequence set by the employer | Concerned with the finished product and sets own order or sequence of work |
| May provide regular oral or written reports about the work in progress | Usually not required to provide regular oral or written reports about work in progress |
| Paid by the employer in regular amounts at intervals, such as by the hour or week | Paid by the job, either a negotiated flat rate or upon submission of a bid |
| Business and travel expenses are either paid directly or reimbursed by employer | Pay business and travel expenses without reimbursement |
| Tools, materials, and equipment provided by employer | Provides all of the tools and equipment to complete the job |
| Has little or no investment in the business, but is economically dependent on the employer | Has financial investment in their independent business |
| Not impacted by a profit or loss in the business, paid for services rendered | Can make a profit or suffer a loss depending on the management of expenses and revenues |
| Usually works for one employer at a time and may be prohibited from working for a competitor | Works for more than one client or company at the same time and not subject to a non-competition rule |
| Does not make services available to the public except through the employer's company | May advertise, carry business cards, or hold a separate business license |
| Can be discharged at any time without liability on the employer's part | If the work meets the contract terms, cannot be fired without liability for breach of contract |
| May quit work at any time without liability on the employee's part | Legally responsible for job completion and, on quitting, becomes liable for breach of contract |
Consult a professional
If you think you misclassified anyone, reach out to a human resources or legal professional for steps to take for misclassified workers. It’s worth the money to invest in professional advice if you have questions or want to be sure how to proceed.
Disclaimer
The information contained here is for educational purposes only and is not intended to constitute legal, tax, or financial advice.