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Who's the Employer?

Answers are provided by S. Derrin Watson, JD, APM

Attendant as Independent Contractor

(Posted October 23, 2000)

Question 61: I had a job setting as a Model Home Attendant and cleaning the units for the company. I was paid by one check for both jobs. I had set days and hours for the two jobs. They said I was an independent contractor. They reimbursed me for cleaning supplies. I am in Ohio. My question is, am I an independent contractor?

Answer: One of the difficulties of questions like this is that the determination of whether someone is an independent contractor or an employee is based on a host of facts and circumstances. You can't just look at one or two and come to a conclusion.

The facts in the question would lead one to conclude that the individual is a common law employee. These are not jobs requiring a lot of skill. There were set hours. The worker was reimbursed for business expenses. All these factors tend towards being a common law employee.

But, suppose this worker had a business cleaning homes, and advertised regularly. That would certainly indicate the worker is an independent contractor. Did he or she have the option of hiring others to do the work? Did the worker bring his or her own cleaning equipment to the job? To what extent was the worker supervised by the company?

Over and over, the IRS audit guidelines dealing with employee status remind agents to look at the whole picture, not just one or two facts. Rightly so.

This issue is discussed at length in Chapter 2 of my book, Who's the Employer?.

(P. S., if I had to guess, I'd guess this worker is a common law employee.)

Important notice:

Answers are provided as general guidance on the subjects covered in the question and are not provided as legal advice to the questioner or to readers. Any legal issues should be reviewed by your legal counsel to apply the law to the particular facts of this and similar situations.

The law in this area changes frequently. Answers are believed to be correct as of the posting dates shown. The completeness or accuracy of a particular answer may be affected by changes in the law (statutes, regulations, rulings, court decisions, etc.) that occur after the date on which a particular Q&A is posted.