The question of whether a worker is an independent contractor or an employee is not easily answered. Merely agreeing with someone on independent contractor status does not make it so.
Contrary to what you might think, the mere existence of a written employment contract or a lease will not establish an independent contractor relationship. State courts and state agencies have typically used a number of tests to determine whether an individual is an employee or an independent contractor. No single test is the sole determining factor. However, a crucial factor in determining employment status is the right to direct or contol. If you have the right, whether or not that right is exercised, the courts have routinely decided that the “independent contractor” is actually your employee.
Some of the other tests used are
- Whether the person performing the service has independently chosen the burdens and benefits of self-employment.
- Whether the person performing the service is engaged in a distinct occupation or business.
- The skill required in the particular occupation.
- Whether the employer or the person performing the service supplies the iinstumentalities, tools, and place of work.
- Whether the person performing the service has the right to hire and terminate others.
- The right to terminate the relaionship at will.
Remember, this list is not exhaustive, and the answer to any single test is not the determining factor.