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Are Your Independent Contractors Really Independent?

By E. Fredrick Preis, Jr. and Joseph R. Hugg

Does your company use independent contractors in order to minimize overhead and other potential liability? What makes you so sure they are not employees? Is it because they signed an agreement indicating that they are not employees? Is it because you issue them a Form 1099 instead of a W-2? Is it because they are largely independent of your company's day-to-day control?

You may be surprised to learn that these criteria are not necessarily dispositive of whether a worker is an employee or an independent contractor. In fact, the determination of whether a worker is an independent contractor is one of the issues of the decade ' and became even more critical after the Department of Labor (DOL) and Internal Revenue Service (IRS) announced earlier this year that they plan to step up enforcement of companies that miscategorize employees as independent contractors to avoid compliance with tax laws and labor laws.

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