Should I be an employee or independent contractor?

UPDATED: Sep 30, 2022

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Should I be an employee or independent contractor?

At the start of this year, my boss moved me from being a payroll employee to an independent contractor. I have a set salary, set days and times I have to be at work. I use all of his equipment, office, and software for the work that I do. Is this legal?

Asked on October 21, 2016 under Employment Labor Law, Nebraska


M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 6 years ago | Contributor

Unfortunately, there really isn't a specific definition of who is an independent contractor. Yet, in making the determination several factors are considered:

How much control your boss has over how you do your job? For example, does your boss tell you when and where to work? If your boss has the right to tell you how to perform your duties, you are likely an employee.
How much control does your boss have over the money it takes to do the job? For example, does your boss buy equipment; pay you an hourly rate? If so, you are likely an employee. However, if you pay for your own expenses and are paid a flat rate for the job, you are likely an independent contractor.
What is the arrangement between you and your boss? Are you able to work for other businesses; are you allowed to hire your own employees to help you? If so, you are probably an independent contractor. However, if you work for only one business, cannot hire helpers, and do much the same job as co-workers who work, you are likely an employee.

That all having been said, based on what you have written, it appears that you are an employee. To be certain of your rights, you should contact your state's department of labor, the IRS and/or consult with an employment law attorney.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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