The Gig is Up: A Comprehensive Look at Worker Classification in Today’s Economy

The Gig is Up: A Comprehensive Look at Worker Classification in Today’s Economy

Properly classifying workers as employees or independent contractors is crucial for ensuring compliance with labor laws and avoiding costly penalties. However, the dividing lines can become blurred, especially with the rise of the gig economy and more flexible work arrangements. This in-depth look will explore key factors, common ambiguities, and best practices essential for correctly distinguishing between employee and contractor statuses.

The implications of worker classification are significant. Employees are subject to more company oversight and control but are eligible for benefits, overtime pay, insurance, and other legal protections not guaranteed to contractors. From a tax perspective, employers must pay a portion of payroll taxes and withhold income taxes for employees only.

Misclassifying an employee as an independent contractor illegally circumvents these obligations and exposes companies to IRS audits, back taxes, and fines. Intentionally misclassifying workers to try to save on costs is ill-advised and high risk.

On the other hand, incorrectly designating independent contractors as employees can saddle companies with unnecessary expenses and administrative burdens. It's estimated that up to 30% of employers
misclassify workers, emphasizing the need for a clearer understanding of the standards and nuances in making the right call.

This article will cut through the confusion surrounding worker classification by outlining the definitive IRS criteria, common gray areas, state-specific considerations, and recommendations for remaining in compliance. Let’s examine the key factors that determine whether a worker is best classified as an employee or contractor.

Key Factors in IRS Classification

The IRS examines three main categories of evidence to determine whether a worker qualifies as an employee or independent contractor: behavioral control, financial control, and the relationship between the worker and the business.

Behavioral Control

This refers to the company’s level of control over how services are carried out by the worker. More instruction and oversight implies employee status, while autonomous contractors require less direction.

Key aspects include:

Instructions and training - Contractors typically use their own methods and need little guidance. Employees follow company procedures.

Evaluation systems - Performance evaluations imply employees, while contractors are typically paid for completing the project per contract terms.

Schedule and location - Employees adhere to the employer's stipulated work hours and locations. Contractors have discretion over their own hours and workspace.

Financial Control

Payment methods and who covers expenses also factor into status:

Payment - Employees receive regular wages or salary. Contractors are typically compensated based on invoices for specific projects, deliverables, or defined service periods.

Expenses - Companies cover employee expenses like tools, supplies, and travel. Independent contractors pay their own expenses.

Benefits - Contractors do not receive company-paid benefits given to employees like insurance, vacation pay, and retirement plans.

Relationship Factors

The scope and terms of the working relationship provide additional classification clues:

Length - Ongoing, open-ended service indicates employees. Contractors have defined end dates and limited service terms.

Work for others - Employees cannot provide services for competitors. Contractors can work for multiple clients and competitors.

Termination - Employees can be terminated at any time. Contractors typically have defined obligations and exit terms in their contracts.

Common Areas of Ambiguity

While the IRS provides clear criteria on paper, real-world worker relationships do not always neatly fit into the employee vs. contractor categories. There are some common situations that present challenges in definitively classifying a worker’s status:

Industries with Prevalent Contractor Relationships

Some industries like construction, real estate, transportation, and cosmetology have long relied on contractor relationships, which may straddle the line between true contractor status and misclassified employees. Unique job demands provide more justification for contractor classifications but require careful consideration.

Newer Business Models

The growth of the on-demand “gig economy” with companies like Uber, TaskRabbit, and DoorDash introduced new contractor roles that do not mesh cleanly with the IRS tests. These digitally enabled jobs allow flexibility but also involve some company control typical of employment. Classification remains controversial.

Jobs Allowing Work Autonomy

Professions such as graphic designing, accounting, and consulting often have built-in independence and require specialized skills. However, they may still receive substantial direction and operate like employees. The autonomy factor should be carefully weighed against others.

Professional Employer Organizations (PEOs)

A growing trend is the use of Professional Employer Organizations (PEOs) that assume HR and compliance responsibilities for workers. In a PEO arrangement, the business engages the PEO as the formal employer of its staff to handle payroll, benefits, taxes, and labor compliance. However, the business retains management oversight of the employees. Although this model eases some administrative responsibilities for companies, it can further obscure whether PEO-managed staff are legally the PEO’s employees supplying services or the client’s staff.

The implications of PEO relationships on worker status continue to be shaped by evolving laws and regulations. However, correctly classifying PEO staff based on actual working conditions remains critical for all parties involved.

Alternative Work Arrangements

Part-time, temporary, and flexible work models create ambiguities, especially concerning schedule control and the continuity of the relationship. However, other indicators like the level of supervision, payment method, and the permanence of the role can provide clarity.

State and Local Variations

While federal statutes provide the overarching framework for classifying workers, state and local laws can create variations in how employee vs contractor status is determined:

State Classification Laws

Many states have enacted their own laws and tests for interpreting worker classification that add to or modify the federal standards. These may consider additional factors or weight certain criteria more heavily. Employers need to be aware of any unique classification rules within their state.

ABC Test

A growing number of states use an “ABC test” as the standard, which starts with the assumption a worker is an employee unless the employer can establish:

A. The worker operates free from company control.

B. The work involves tasks outside the company's core business.

C. The worker runs an independent business in that type of work.

This test places the burden on employers to prove a worker is a contractor by default.

Industry-Specific Categories

Some states have distinct contractor categories and standards for certain industries like construction and beauty services based on their licensing regimes. Employers in these industries must follow state-specific guidance.

Unemployment Insurance

The rates employers must pay for unemployment insurance are impacted by whether workers are classified as employees or contractors. States enforce UI rules that align with worker status.

Local Ordinances

Some local jurisdictions impose their own requirements for designating contractor status for purposes of business licensing, permitting, and tax registration. Municipalities may scrutinize worker status closely.

Risks of Misclassification

Intentionally or accidentally misclassifying employees as independent contractors can lead to significant consequences:

Tax Penalties

The IRS actively investigates potential misclassification through audits, which can result in the employer owing back pay of employment taxes, interest, and penalties. Penalties can rise to thousands of dollars for each misclassified worker.

Labor Law Violations

Misclassifying employees as contractors illegally denies workers their rights under state and federal labor laws related to discrimination, overtime, leave, collective bargaining, and workplace safety protections. This exposes companies to lawsuits and regulatory actions.

Benefits and Overtime

Misclassification can enable companies to unlawfully evade paying benefits like health insurance and retirement plans as well as overtime rates for hours over 40 per week as required under the Fair Labor Standards Act.

For example, in 2019 a cable installation company paid $20 million in a settlement for misclassifying hundreds of technicians as contractors, denying them overtime pay and other protections. The company was also forced to convert contractors to employee status. Such high stakes emphasize the importance of proper classification.

Best Practices for Compliance

The complexities of properly classifying workers can leave employers vulnerable to missteps. Here are some best practices to maintain compliance:

  • Review state labor department guidance to understand all applicable standards. States may simplify or amplify federal rules.

  • For any questionable roles, consult an employment lawyer or tax professional to evaluate status implications. Their input can prevent issues down the road.

  • Thoroughly document proposed terms before engaging new workers to ensure correct

  • Audit current worker classifications and status periodically to catch any changes that may have strayed from compliance.

  • Educate managers and supervisors on factors that distinguish employee vs. contractor roles, and appropriate policies for each.

  • Implement clear company protocols and requirements for engaging contractors to maintain consistent standards.


Worker classification remains fluid and complex as employment relationships evolve. While the IRS provides definitive guidance on distinguishing employees from contractors, a practical application often involves nuance and uncertainty. Companies that make diligent, good-faith efforts to comply with all applicable federal, state, and local standards can avoid missteps. When in doubt, don’t hesitate to seek expert advice. With careful consideration of the critical factors at play, organizations can properly classify their workforce and stay on the right side of the law.

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About Our Firm

Tim Thompson CPA PLLC is located in Dallas, Texas and is an expert in all areas of Texas taxes. We can help with individual or business taxes, tax resolution, tax preparation, and tax planning services.