Independent Contractor or Employee
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What are the factors the court looks at in determining whether a person is an independent contractor?
The key factor in determining whether an individual worker is an employee or a contractor is the amount of control he or she has over her job duties and the type of service or product provided. If an organization has control over how and what type of work a person must do, he or she is an employee. In am employer-employee relationship, the organization (employer) has the legal rights to control the details of how a task is accomplished. An employer is required by law to withhold income taxes, withhold and pay Social Security and Medicare taxes, and pay unemployment tax on wages paid to an employee, but not to independent contractors (www.irs.gov).
According to Business & Technology Law Group (2012), a Maryland-based law firm, several factors are considered in determining whether the person performing the service is an independently. These factors include:
Business listing in the telephone directory for the service
The individual has his or her own place of business
The individual has a financial investment in the business and can incur a loss in the performance of the service
The individual owns equipment needed to perform the service
The individual determines the price of the service
The individual can employ others to perform the service;
The individual carries his or her own liability or workers compensation insurance, or both
The individual performs the service for more than one unrelated employer at the same time
The individual sets his or her own hours
The individual is paid by the job
Are you an agent of the company? What constitutes an agent?
After reading what constitute an agent, it sounded like I am an agent of the company that employs me. My official title is Product Support Sales Representative. My duties include entering into contracts on behalf of my company, in regards to parts and service necessary to optimize machinery usage. I compensated by means of a salary plus commission. I solicit sale for products and services provided by the company; loyalty to the brand name is required. My company provides reimbursement for expenses by means of a credit card and the use of a company vehicle. I need to do due diligence when entering into contracts. If there are any losses to the contract, my company is held responsible and liable. By definition, it sounds like I am an agent. However, I am not; I am an at-will employee.
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