Q. We want to bring on a worker to help finish up a contract that we have with a customer. The contract and work will end in a few months. To ease in setting this up and to avoid any long-term commitment, I’d like to hire the individual as a contractor and not an employee. Can I do this?
A. There are various tests used to determine whether an individual can be properly classified as a contractor. Factors to be considered include:
- The amount of control over the worker that the business asserts
- Whether the work is performed using tools and equipment provided by the business
- Whether the work is part of the regular business of the hiring party
- The discretion available to the hired party to decide when and how to perform the work.
While the duration of the work to be performed is also a consideration, the fact that this relationship is only going to be in place for a few months does not matter. Because this individual will likely be engaging in the same type of work that your employees perform (perhaps even working alongside other employees), I see some potential for this being an employment relationship.
The risks of misclassifying someone as a contractor can be significant. Before going down the path of retaining this person as a contractor, it would be wise to review all of the relevant issues in light of the factors listed above.
Another issue to explore is why you are reluctant to hire this person as an employee. If you are clear about your expectations and the fact that the contract and work will be going away in a few months, there need not be concerns about any long-term commitment.
In fact, in circumstances like these it is common for employers to enter into employment terms that diverge from their normal processes.
For example, you may want to draft an offer letter that spells out the fact that the employment will end when the contract expires (if not terminated sooner by either party). You may also want to make it clear that although an individual working in this particular job would normally receive certain benefits, because of the anticipated short duration of the work, the employee is not going to receive the same benefits.
Often, the employment hassles businesses seek to avoid by retaining a contractor are not as burdensome as they first seem.
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