Can person be employee and independent contractor? — Business Management Daily: Free Reports on Human Resources, Employment Law, Office Management, Office Communication, Office Technology and Small Business Tax Business Management Daily

Can person be employee and independent contractor?

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Q. One of our full-time hourly employees has started a cleaning business on the side. We pay her a set amount for cleaning the offices on the weekend. Since this is an entirely different position, can we pay her as a 1099 independent contractor for the cleaning work if she’s also a full-time employee? — V.N., Texas

I don’t know all the facts here, but under most circumstances I would advise against doing this. Treating a portion of work done by an employee as work performed by an independent contractor is likely to be scrutinized with a lot of skepticism. For example, if the employee normally works 40 hours each week, the Department of Labor may view this as an improper means of circumventing overtime rules.

Assuming the person’s cleaning work is truly an “entirely different position,” it would be just as easy and far less risky to simply pay this employee a different hourly rate as an employee, rather than treat her as an independent contractor.

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