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Independent Contractor for Construction

Los Angeles, CA |

My business is 2 months old, I am a general contractor in CA, I had a proposal of getting a crew of 3 to classify them as 1099, the work is a short burst (about 2 weeks) single family remodel, the job will cost about 3-5k in materials and labor, i dont control their time, vehicles and how they do it, i would tell them what needs done and take it from there. The job will be small plumbing, electrical and window/door replacement. The proposer has no license but is willing to work under a 1099 rule. Do they qualify for 1099? Do I go with piecework? if so, how fo i deduct taxes and what does their paycheck look like?

Attorney Answers 4


  1. Best answer

    I agree with my colleagues, that if a person is working under your license, he or she should be your employee. However, there actually is a test that the IRS uses to determine whether the person is even eligible to be an independent contractor. Many states use a very similar form of questions for the determination of whether you should have classified the person as an employee for purposes of workers compensation (I am an Ohio lawyer, Ohio "taxes" for workers comp., rather than permitting private insurance) and other employment related taxes. Unfortunately, this isn't definitive. There are still lawsuits to determine what the correct answers to the questions should have been, because they aren't always clear. Even worse, the form that you will likely get them to sign saying that they are a 1099 person doesn't carry much weight and if they are hurt or the IRS comes after them for failing to pay taxes, including FICA, you are the one that they are going to look at for payment.

    Hiring an individual as an independent contractor is dangerous. If they really are a business, pay their own taxes, have their own workers comp account, etc., you are safer. Another issue is workers comp itself. If they are hurt on your job, they will file a workers comp claim against you. Now YOU have to prove that they weren't an employee. If it is determined that they SHOULD have been an employee, you will become a non-complying employer and be responsible for their awards. Alternatively, if they really aren't employees, you are not protected by the workers comp laws and they can sue you for negligence in their injuries.

    If you are going to hire them as independent contractors, be sure that you do it the way you would, hopefully, hire any subcontractor, with a contract, requiring them to act as a business, having workers comp coverage, liability insurance and everything else that a real business would.

    IF YOU FOUND THIS ANSWER HELPFUL PLEASE MARK IT SO. The answers provided by R. Russell O’Rourke, Attorney-at-Law as a free informational service only. Without thoroughly reviewing your case neither I nor any other attorney can give you a complete answer upon which you could or should rely. Your reading of this or any of my answers does not create an attorney client relationship between us. Legal cases are often very fact specific and need a qualified attorney to properly review ALL of your materials and fully discuss your case with you before you decide the right course of action to take. YOU SHOULD CONSULT WITH AN ATTORNEY IN PERSON who has specific expertise in the area of law you are asking about.


  2. Anyone working under your contractor's license should be an employee.


  3. My colleague is correct. If you don't control their time or how they do the job, then they are sub-contractors to you. In California, a plumbing sub must have the appropriate CSLB license. Are you going to sign off on their work for LA County plumbing inspections? If so, then the workers are your employees. And what about the owner, are you going leave him/her open for a lien? It is really in your best interest not to try to cut this corner. If you are unsure, the penalties are sufficient that its worthwhile for you to pay for an attorney.


  4. There really is no such thing as an independent contractor for construction purposes. Either they are your employees, or they are subcontractors. If they do not have a license, they cannot legally perform construction work except as an employee of a licensed contractor.
    You will be aiding and abetting an unlicensed contractor by doing this which could subject your license to discipline by the CSLB.
    If you do this and do not have workers compensation insurance, then your license is automatically suspended as of the first moment these workers show up on the job. That could result in discipline by the CSLB, and if the owner finds out, they would not have to pay you for that work and could sue for return of any amounts they did pay.

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