December means the holidays, family and even stress, but it may also be the time to think of bonuses for your employees, which leads me into the timely discussion of the difference between independent contractors and employees.

I usually get this question when a business owner is worried that the person they have been giving a 1099 form to—the IRS form given to independent contractors so that they pay their own taxes- is not really an independent contractor. In fact, this person is an employee who is being fired and may want to collect unemployment, something an independent contractor cannot do.
The IRS looks at three criteria:
• Behavioral Control covers facts that show whether the business has a right to direct or control how the work is done through instructions, training or other means.
• Financial Control covers facts that show whether the business has a right to direct or control the financial and business aspects of the worker’s job.
• Type of Relationship factor relates to how the workers and the business owner perceive their relationship.
In Massachusetts the law and test is stricter as people are considered to be an employee under those chapters unless:
(1) the individual is free from control and direction in connection with the performance of the service, both under his contract for the performance of service and in fact; and
(2) the service is performed outside the usual course of the business of the employer; and,
(3) the individual is customarily engaged in an independently established trade, occupation, profession or business of the same nature as that involved in the service performed.

The best example to illustrate is:

Independent contractor: You are a health care practitioner with your own office and need an electrician to install outlets. You hire an electrician, you do not know how to install outlets, do not tell the electrician how to do their job and pay them a fee for the service they have done.

Employee: You are a health care practitioner and you offer massages, you hire a massage therapist, give the massage therapist a room, clients and tell the massage therapist what time to come in. This is an employee.
The issue is that it is less expensive to utilize independent contractors because with employees the employer must pay payroll taxes, workers compensation and unemployment. However, the question is how much do you want to risk since penalties are stiff for a business owner.


Cynthia Pasciuto is an attorney, consultant, mediator and educator in Massachusetts who has taught at Bentley University, NIWH and NESA.