For years, employers have struggled to comply with the legal obligations for employees, as opposed to independent contractors, because of conflicting definitions and enforcement policies.
For years, employers have struggled to comply with the legal obligations for employees, as opposed to independent contractors, because of conflicting definitions and enforcement policies. These definitions and notices have varied among state agencies. Additionally, Oregon’s test has not been coupled with the test used by the IRS.
The Oregon statutory rules were revised at the first of the year, and the revisions are now more closely aligned with the federal rules. But there is still no guarantee that an individual will have the same status under both federal and state law.
In order to be an independent contractor in Oregon, individuals must meet three of the five following criteria:
- Maintain a business location.
- Bear the risk of loss related to the business or the provision of services.
- Provide contracted services for two or more different persons within a 12-month period, or routinely engaging in business advertising, solicitation or other marketing efforts reasonably calculated to obtain new contracts to provide similar services.
- Make a significant investment in the business.
- Have the authority to hire other persons to provide or to assist in providing the services and having the authority to fire those persons.
Conversely, the IRS uses a common law test and has traditionally considered 20 factors in making its determination. The factors that the IRS considers are set forth at www.irs.gov.
Employers have an obligation to correctly classify workers. Both the IRS and the State of Oregon will determine whether an employment relationship exists. If you classify an employee as an independent contractor and you have no reasonable basis for doing so, you may be held liable for employment taxes for that worker and penalties. In addition to penalties and interest, the IRS reserves the right to seek civil and criminal sanctions against the employer. The IRS reported in 2004 that during the prior three years, 117 people were sentenced to confinement for criminal violations related to employment taxes.
If you are unable to determine whether a person is an employee or an independent contractor, you can ask the IRS to make that determination. IRS Form SS-8, “Determination of Worker Status for Purposes of Federal Employment Taxes and Income Tax Withholding,” is available online. Oregon’s Department of Consumer & Business Services provides a similar service through its Employer Compliance Unit.
— Peter O. Watts
Associate, Jordan Schrader Attorneys
[email protected]
