How do I know if employees are independent contractors or employees?

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How do I know if employees are independent contractors or employees?

This is not now, I am looking to the future, so barring any new laws what would the answer be now? I am starting a virtual services business, things like social media posting, email services, bookkeeping, web design and the like.I’d want to be able to hire people for specific projects, some may be ongoing, some may be short term. I do not assume they are working solely for me. I would assume they have other gainful work. There is no non-compete in place. There is a non-solicitation and NDA in place. Here are a couple examples: (1) I hire a person to create social media posts for 5 or 6 clients. The posts can be uploaded anytime as long as they are in advance by 2 weeks. There are guidelines to follow such as no offensive material, freshness, authoritativeness etc when creating the posts but no training is offered. The person can work whenever and where ever. Is this an IC or W2. (2) I need a person to do some email work. While they can decide what hours to work it does need to be done during business hours. There is some training to use the correct system for the client and to gain an understanding of the client’s business in order to answer the email. Would this be IC or W2? (3) I need a person to do some reseach on a product. This can be done whenever and where ever. I would pay hourly for time spent on the research. Detailed records of work meaning how many hours and minutes and dates worked would be needed for payment. Would this be IC or W2? I hope I explained this in a coherent fashion.

Asked on September 10, 2017 under Employment Labor Law, Alaska

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 4 years ago | Contributor

While it's often not a 100% clear brightline between independent contractor and employee, 1) and 3) are most likely IC's: not only are they working where and when they want, but you are essentially "buying" services or products from them (the posts; the research) which, even if you have some parameters for acceptable deliverables, still means that you are not managing in any way how they do their work. They create posts or do research and submit; you in essence only have involvement the beginning (letting them know what you want done) and end (receiving/approving) and no i the middle of the process.
2) *might* be a contrator, but a more conservative view would hold them to be an employee due to the control over work hours, training on the system which they must use (i.e. they are not using their own "tools" but rather yours), need to understand *your* clients, and the fact (I presume) that since they are answering emails for you, there is necessarily more ongoing oversight of what they are doing to make sure it comports with your policies, business model, customer relations. The role is not as independent 1) and 3).


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