HR Q & A: Can I Classify a Worker as an Independent Contractor?

PayVision Online’s HR Answer Center Has The Answer


PayVision Online HR Answer Center

Imagine an entire HR department at your fingertips, 24 x 7, with a myriad of resources, news articles, documents and tools to help your business succeed.  One of the tools we especially like is the HR Snapshot which is delivered to your in-box with answers to FAQ. Here is a recent one on asking references about a prior employees use of sick time. Although this could affect your payroll processing, it could also open you to liability.

Question: We want to hire an administrative assistant. Can we classify this person as an independent contractor during a 90-day try-out period and then, if they work out, hire them as a full-time employee at the end of the 90 days?

Answer: The short answer is no.

It’s highly unlikely that an administrative assistant would meet the criteria for classification as an independent contractor. The IRS and the U.S. Department of Labor, along with state agencies, have specific criteria for determining who is an employee and who is an independent contractor. These criteria focus on the overall relationship workers have with their employer, with particular attention to who controls when, where, and how the job gets done, as well as who has the opportunity for financial profit or loss. Administrative assistants typically do not have that level of control over their work, so they’ll almost always be classified as employees.

I understand that you’d like to hire the individual on a trial basis, with the possibility of continued employment. You can do this by offering them temporary employment. During the 90-day period, make sure that you provide the employee with clear expectations for the position and success in the role. If you elect to end their employment once the 90 days are up, you should document why they are not being considered for continued employment.

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Contact us at 214-442-5888 to learn more about payroll and our integrated HCM. Our payroll specialists will be happy to help you. We can also share with you the benefits of our HR Answer Center, and quickly connect you with the pros to answer any questions you may have in determining appropriate inquiries for interviewing that will keep you from unnecessary exposure.