Small biz: Person to answer phone and sell can be independent contractor?

I own a brand new business and would like to have an experienced salesperson answer the phone for the business. This person can work from home with his/her own phone and a number that I assign. Prospective customers tend to call at random hours so it's not mandatory that this person be available to answer calls during fixed hours but it would be nice - the more often the phone is answered the more new customers we will close. Can this person be legally classified as an independent contractor? (as opposed to an employee). I googled this but am not sure if the person will be classified as a salesperson (he/she won't be generating leads on his/her own), a call center rep' (the job is more than just reading a script), a hybrid, or whether it even matters. Thank you.

Los Angeles, CA -

Attorney Answers (3)

Marilynn Mika Spencer

Marilynn Mika Spencer

Employment / Labor Attorney - San Diego, CA

Who controls your work? The general rule is that a person is an independent contractor if the employer has the right to control or direct the RESULTS of the work but not HOW the work is done or even WHAT work is done.

Many employers misclassify workers as independent contractors, when in fact they are employees. Employers receive a substantial benefit from doing this, but there is NO benefit to the workers. If you are wrongly classified as an independent contractor instead of an employee, you will not be eligible for many benefits of employment or your eligibility will be reduced. Areas affected include the right to:

– be paid for all hours worked or controlled by the employer;
– the legal minimum wage;
– overtime pay;
– rest and meal breaks;
– workers' compensation insurance;
– Social Security contributions;
– unemployment benefits;
– state disability benefits;
– employer benefits such as vacation, sick leave, pension, medical insurance, etc.

Also, in some states, including California, employers are subject to a penalty if they misclassify employees as independent contractors (see below).

There are different ways to determine if a worker is an employee or independent contractor. Employers must comply with all relevant laws.

FEDERAL TAX LAW: The Internal Revenue Service (IRS) looks at three areas to determine a worker’s status:

Behavioral Control This area considers instructions and training. If the employer has the right to direct or control your work, even if it does not exercise that right, you are an employee. Therefore, if your employer gives you detailed or extensive instructions on how to get the job done, you are probably an employee and not an independent contractor. These instructions might include when to do the work, or how and where to do it; what equipment or tools to use; who you can hire or not hire to help you; what supplies and services to buy, and/or where to buy them. If the employer trains you in required methods of doing the work or the procedures to get the work done, this is evidence the employer wants things done its way, which indicates you are an employee and not an independent contractor.

Financial Control This area considers who has the right to direct and control the business, not just the work. The more of a financial or promotional investment you have made in the work, the more likely you are an independent contractor. However, there is no requirement for an investment in order to meet the definition of independent contractor. If you incur expenses in performing the work but are not completely reimbursed, you are more likely to be an independent contractor rather than an employee, especially if these expenses are high. If you have the chance to make a profit or loss on the work, you are probably in business for yourself and therefore an independent contractor.

Relationship of the Parties If you do not receive benefits such as medical coverage, vacation, or pension, you may be an employee or an independent contractor. However, if you receive benefits, you are probably an employee.

If you are an employee, your employer must withhold income tax and the employee portion of Social Security and Medicare taxes. Your employer must pay Social Security, Medicare and unemployment (FUTA) taxes on the wages you earn. Your employer must give you an IRS Form W-2, Wage and Tax Statement, every year showing the amount of wages paid and taxes withheld from your pay. As an employee, you have the right to deduct unreimbursed business expenses from your taxes on IRS Schedule A if you itemized deductions and meet the other requirements established by the IRS.

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Peyman Dadmehr

Peyman Dadmehr

Employment / Labor Attorney - Los Angeles, CA

There are a number of factors that determine whether someone is considered an employee or independent contractor. For example, if this person is providing this service to a half dozen companies like you using his own equipment, etc. it is more likely that he would be considered an independent contractor. However, if this person pretty much works for you and no-one else he would probably be an employee (perhaps a part time) one irrespective of who buys the equipment and whose phone he uses.

Dana Howard Shultz

Dana Howard Shultz

Business Attorney - Oakland, CA

It is impossible to provide a definitive answer based on the information you have provided.

The post at the link below describes some of the factors that go into the contractor vs. employee determination. You may find it helpful.

This information does not constitute legal advice and does not establish an attorney-client relationship.

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