Classifying Workers

Learn the rules for employees vs. contractors.

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Worker Classification

Table of Contents
This web page contains the following major sections.

  • Information from the IRS and Congress
  • Joint Committee on Taxation Reports
  • GAO Reports
  • Treasury Department
  • National Taxpayer Advocate Reports
  • Information from the Department of Labor & NLRB
  • Legislative Proposals and Hearings
  • Selected State Information
  • Modern Economy Matters
  • Articles

Introduction

If an employer has the right to control the worker's work—how and what he does—the worker is an employee. If not, generally, the worker is an independent contractor. The employer's tax treatment of each is different, and the workers have different tax rules that apply to them. For example, a contractor can deduct her business expenses against her business income, while an employee must treat them as miscellaneous itemized deductions only deductible to the extent that category of deductions exceeds 2% of AGI.

This website, created and maintained by Professor Annette Nellen, includes links to information from the IRS and other government agencies on worker classification matters. There are also links to legislative proposals to improve the worker classification rules.

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Information from the IRS and Congress

Joint Committee on Taxation Reports

GAO Reports

Treasury Department

National Taxpayer Advocate Reports

  • NTA 2003 page 256 - suggesting a modified withholding approach for certain contractors
  • NTA 2008 page 375 - proposals for simplification
  • NTA 2013 page 197 - problems with SS-8 processing and repeat of simplification suggestion for classification
  • UK Classification Tool mentioned by NTA

Information from the Department of Labor & NLRB

Legislative Proposals and Hearings

  • S. 1687 and H.R. 4611 (113th Congress) - Payroll Fraud Prevention Act
  • S. 1706 and H.R. 4503 (113th Congress) - Fair Playing Field Act
  • H.R. 6128 (111th Congress) - Fair Playing Field Act of 2010 - "to permit the Secretary of the Treasury to issue prospective guidance clarifying the employment status of individuals for purposes of employment taxes and to prevent retroactive assessments with respect to such clarifications."
  • H.R. 3408 (111th Congress) - Taxpayer Responsibility, Accountability, and Consistency Act of 2009 - "to modify the rules relating to the treatment of individuals as independent contractors or employees, and for other purposes."
  • Senate HELP Committee hearing on June 17, 2010 - Leveling the Playing Field: Protecting Workers and Businesses affected by Misclassification

Selected State Information

California

  • California Employment Development Department (EDD)
  • Regulations under Title 22 - NOTE: Changed due to enactment of AB 5 effective 1/1/20
    • 4304-1 - Employee Defined
    • Per DE 40 - "Title 22, California Code of Regulations, Sections 4304.2 through 4304-12, sets forth specific application of the common law rules for specific industries. These regulations must be addressed when making employee vs. independent contractor status determinations involving a type of worker or service. The following types of services are addressed:
      • Real Estate Salespeople (Title 22, CCR, Section 4304.2)
      • Home Health Care (Title 22, CCR, Section 4304.3)
      • Computer Services (Title 22, CCR, Section 4304-4)
      • Artists (Title 22, CCR, Section 4304-5)
      • Newspaper Distribution (Title 22, CCR, Section 4304-6)
      • Product Demonstrators (Title 22, CCR, Section 4304-7)
      • Security Dealers (Title 22, CCR, Section 4304-8)
      • Language Interpreters (Title 22, CCR, Section 4304-9)
      • Amateur Athletic Officials (Title 22, CCR, Section 4304-10)
      • Process Servers (Title 22, CCR, Section 4304-11)
      • Barbering and Cosmetology (Title 22, CCR, Section 4304-12)"
  • California Labor Code Section 2753and 226.8 as changed by SB 459 (2011) to impose penalty for knowlingly advising someone to treat an employee as a contractor or doing so

Connecticut Department of Revenue

Minnesota

New York

  • Basic info from the NY Dept of Labor

Oregon

  • FAQs about independent contractors (includes nice chart on varying classification rules)

Texas Workforce Commission

Vermont

Modern Economy Matters

Articles