THIS CHECKLIST IS ONLY FOR THE USE OF THE CUA OFFICE OF GENERAL COUNSEL IN DETERMINING WHETHER A PROPOSED WORKER SHOULD BE TREATED AS AN EMPLOYEE OR MAY BE TREATED AS AN INDEPENDENT CONTRACTOR.  IT IS NOT INTENDED FOR ANY OTHER PURPOSE AND SHOULD NOT BE RELIED UPON AS A COMPREHENSIVE STATEMENT OF THE FACTORS OR ANALYSIS TO BE APPLIED TO SUCH QUESTIONS.

 

Is the person an independent contractor or an employee?

 

In general, a person is considered an employee if the employer has the right to "direct and control" the worker.  The most recent IRS test focuses on three factors: behavioral control; financial control; and the relationship of the parties.  The general rule is that a person can be classified as an independent contractor if CUA has the right to control or direct only the result of the work and not the means and methods of accomplishing the result.

 

No one factor is determinative;  all facts must be analyzed to determine if some factors are more important than others under the particular circumstances.  “Yes” answers to the questions below tip the scales in favor of the worker being classified as an “employee.”

 

1.a.  Is this person already employed by the university or did the university employ

the person in some capacity within the last year?

 

q       Yes

 

q       No

 

2. Is there a continuing working relationship between the university and the worker (even if it is on a part-time basis or seasonal in nature) or is the work is only for a short time on a one-time basis?

 

q       Yes

 

q       No

 

    c.  What is the job title, and what is the worker's business or professional title?

 

 

2. Will CUA have a right to direct or control or supervise this worker? (e.g., how, where, and when to do the work, what tools to use, where to buy supplies, etc.)

 

q       Yes

 

q       No

 

   a.   Will the worker be required to perform the work in a certain order?  Is prior approval for any tasks required?

 

_   Yes

 

_    No

 

   b.   Are any written or oral reports required?  How often? 

 

_   Yes

 

_    No

 

   c.  Does the university retain the right to suggest changes based on those reports?

 

_   Yes

 

_   No

 

 

 

3. Will CUA provide any training to the worker about procedures to be followed, university rules and regulations, etc.?  If so, how will the worker be trained?

 

q       Yes

 

q       No

 

4.         a. Will CUA, and not the worker, make any monetary investment in his/her work?

 

q       Yes

 

q       No

 

2. Is this worker prevented from providing services or advertising services to the general public, i.e. worker cannot perform similar duties pursuant to a contract for another employer?

 

q       Yes

 

q       No

 

 

 

5. Will the worker be reimbursed for expenses?

 

q       Yes

 

q       No

 

 

6. a.     Will the worker be paid a fixed amount and not be able to have the chance to realize a profit or loss?

 

q       Yes

 

q       No

 

    b.   What is the expected duration of the hire?

 

 

    c.   Is CUA unable to refuse payment for unsatisfactory work of the worker?

 

q       Yes

 

q       No

 

   d.   Does the worker have the right to quit without incurring liabilty?

 

_   Yes

 

_   No

 

   e. Does the worker work full time for CUA?

 

_  Yes

 

__No

 

 

     d. Will CUA be paying on a regular basis, such as by the hour, week, or month?

 

q       Yes

 

q       No

 

 

7. a. Is the person going to be doing the type of work substantially like that someone currently employed by the university already does regularly in his/her job?  Will the person be working with other employees of the university?

 

q       Yes

 

q       No

 

b.  Are the services provided by this worker very important to the running of the university?

 

q       Yes

 

q       No

 

 

8. Is the University providing this person with office space, a phone, a computer or other equipment or supplies?

 

q       Yes

 

q       No

 

   a.   Who decides where the work will be performed?  Where will it be performed?

 

   b.   Is there an evaluation system used based on performance standards that describe how the work is to be completed?

 

_   Yes

 

_   No

 

 

9. Is CUA the only entity for whom the worker performs work  pursuant to a contract?

 

q       Yes

 

q       No

 

  a.  Is the worker required to work set hours?

 

_   Yes

 

_   No

 

 

10.  Has this person performed services for the university before? 

 

 __Yes

 

__No

 

What were the circumstances?

 

 

 

 

If an employee is mistakenly classified as an independent contractor and the employer has no reasonable basis for doing so, CUA may be held liable for employment taxes for that worker. See IRS Publication 15A, Employer's Supplemental Tax Guide.

 

The presumption of the IRS is that an individual is an employee rather than an independent contractor.  The IRS training materials for tax examiners contain 160 pages of detailed information about how to classify a worker




links updated 6/5/08 rab