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Independent Contractor Controversy, Uglier Than Ever (Part 3 of 3)

Posted by attorney Curtis Harrington
  1. The hiring entity should never get involved with aspects of the independent contractor's equipment, hiring practices, or operations. Every thing the hiring entity wants as a result should either appear in the base contract or in bonus provisions. If the hiring entity is worried about security he can put cameras on his facility, or require a bond for theft or damage. Anything the hiring entity wants should be important enough to be stated in the contract. 14. The hiring entity should have a non-continuous relationship with the independent contractor. This can be especially advantageous during the economic downturn where an employer may need a result represented by only one quarter of a person-week, instead of whole, full time person weeks, for example. Where possible, the hiring entity should alternate between any number of independent contractors. 15. Require the independent contractor to verify the genuineness of his or her own independent basis by inspection of tax returns and 1099's. Where the hiring entity can clearly see that the independent contractor is multiply engaged with different hiring entities, the chances are much reduced that any of the independent contractor personnel will be wrongfully characterized as an employee. 16. Premises presence should not be required unless absolutely necessary and if it is necessary it may not necessarily need to be stated explicitly. An independent contractor hired to service the hiring entities elevators must necessarily go to the premises. If anything can be done off premises, the independent contractor should do it off premises. 17. Don't pay the independent contractor on a temporal regular schedule, but only by performance milestone. Don't pay any small expenses of the independent contractor because those expenses were known and accounted for in the contract price or conversely are of such unexpected nature and magnitude to require a change-order. 18. The independent contractor should have significant financial and loss risk explicitly built into the contract and which is easily recognizable by all parties and especially any IRS auditor. 19. In summation, every effort should be taken by both the hiring entity and the independent contractor to keep the relationship at arms length. If the hiring entity wants a long term relationship with any individual, it may consider employee leasing as an intermediate temporal step before making a formal hire. In general, the previous system where the hiring entity designated independent contractor of employee status for the entities or persons hired is ending quickly. It would have been more honest of our government for Congress to have deliberated and legislated rather than to have stealthily launched a so-called "amnesty" program to herd taxpayers into compliance with an unexpected mandate. The severe impact of this equilibrium shift will not be as apparent because of its widespread but highly differentiated effects. Hiring entities and independent contractors who want to continue their current status should check their circumstances and adopt the most stringent structure to enable them to carry on with their independent status, or simply accept their closely dependent relationship and surrender into employer-employee bliss. For the closely bound, the Limited Amnesty Program for Employee Misclassifications provides a perfect opportunity to re-commemorate their ineluctable tie. Curtis L. Harrington is a principal in the law firm of Harrington & Harrington, which specializes in taxation and intellectual property. Curt may be reached by phone at (562) 594-9784, by fax at (562) 594-4414, or by e-mail at In his capacity as a Taxation Specialist of the State Bar of California Board of Legal Specialization, he is currently (2011-2014) a regular board member of the Board of Legal Specialization having just completed a five year membership (2006-2011) ending with chairmanship of the Tax Law Advisory Committee of the Board of Legal Specialization. Curt and admitted to practice before the state bars of CA, TX, AZ, and NV; the U.S. District Court; the U.S. Court of Appeals, Fifth and Ninth Circuits; the U.S. Supreme Court; the U.S. Patent and Trademark Office; and the IRS. He holds a B.S. in Chemistry (Auburn Univ., 1974); M.S. in Chemical Engineering (Georgia Tech, 1977); JD (Univ. Houston, 1983); MBA (Univ. Oklahoma, 1985); M.S. in Electrical Engineering (California State Univ. - Long Beach, 1990); and LLM in Taxation (Univ. San Diego Law School, 1997).

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