Independent Contractor vs Temp W-2 vs Employee????

[nix1330]

I am trying to more definitively define the difference between these 3 types of resources but have been unable to locate anything concrete other than the IRS 20 Guidelines.

1.  If a resource chooses to work on-site, which due to network security issues requires that they use company computers and such, does his create a case for claims of being an employee? 
2.  Also, how does the number of hours that are worked and the term/duration of the contracting impact their status? 
3.  Can they only be used for a period of time and then have to be let go?
4.  Regarding contract to perm, is there a time limit under which they can work at this status?

[dchamberlinlaw]

Let me first state that the following is not legal advise. Although I practice in the area of employment and labor law, this information is only a general overview and is given for informational purposes only and you should consult with an employement or labor attorney, to address and discuss all the unique factors which may impact your particular case. That said let's begin.

Your questions addresses 2 important issues regarding the management and payment of people. The first issue concerns the IRS tax issue and the second issue concerns to what extent you are able to control the manner in which the work is performed by the worker.

Let's begin with the employee vs independent contractor comparison. First, the IRS will want to know which category the person falls into, and there are a number of variables to consider which are spelled out in the tax code and all state and federal case law; the list of considerations is long. Nevertheless, notwithstanding all the variables the critical concern or question which must be asked is - What degree of control does the paying party (employer) have over the party he is paying (worker) when the worker performs the work? Does the employer direct all the details of the work, provide all the tools to do the work, determine when the worker will work and when he will not, does the employer control the worker in the way the work is done, are there regular employees who do the same work already employed? Most likely the greater the control over the worker the more likely the IRS will consider him/her an employee for tax purposes and withholding purposes. If the worker is an employee the employer is required by law to withhold certain sums, social security, Federal taxes, etc from the paycheck and his withholding are reflected by a W2.

On the other hand, if the employer is dealing with a person who performs work pursuant to a contract ( written is preferred by the IRS) and the contract determines what work is to be performed and the rate to be paid, but leaves the manner of HOW the work is to be performed to the worker, then the worker will be considered an independent contractor, and the employer withholds no taxes for him and simply issues a 1099 reflecting the workers gross pay. The independent contractor is not controlled by the employer in the manner in which he/she does the work, does not supply the tools to do the work, and generally simply leaves the worker to do the task he has contracted to do in the manner the feels he should do the work. Also the period of work is set and fixed and is not for an undefined period of time. How long the contractor will work will be specified in the contract between the employer and the contractor/worker.

Now as to the temporary W2 worker that is simply a worker who is typically an employee of a staffing company that provides workers to companies with needs for a particular worker. How long the worker is needed varies and there is no clear line restriction on how long an employee works as a temporary worker at least from the IRS standpoint however see my last paragraph concerning Microsoft. Just remember that the temporary worker is an employee of the staffing company and the staffing company is withholding taxes from his check, however, the company using this temporary worker is able to control how this worker performs his/her work and manner in which the work is done and the staffing company also controls how this worker does the work by making sure the worker follows the directions of the company using him. Also, as addressed below a company may be wise to not employ "temporary contract workers" longer than 1 year if they are doing the same work and under the same control as the regular employees of the company but not getting the same employee benefits ( and by the way the 1 year rule is not written in stone, it may be shorter or longer depending on the employee benefit plan rights the company has initiated and other factors.)

Now I will add one comment not directly raised by the question. When you are a company attempting to decide whether you are using employees or independent contractors as temporary workers remember the case of Microsoft!!  I am doing this from memory and you can certainly check the facts online, but as I recall it was alleged in a class action against Microsoft that it improperly classified some of its workers as temporary contract workers, and therefore excluded those workers from certain benefits given to Microsoft regular employees ( stock purchase rights etc)  who were doing the same work as the independent contractors/temporary workers were doing. A lawsuit was initiated by these "temporary" workers claiming that they should be given the same benefits as regular employees of Microsoft since Microsoft controlled their day to day work and the details of the work, they were doing the same work as regular employees of Microsoft and had been working as "temporary" workers for well over 1 year. They sought some of the back benefits that they would have received if they had been classified as employees; it is my understanding that the case was settled in favor of the temporary workers and to what extent I am not sure but the moral of the story is - be careful how you classify your workers. If you classify them the wrong way you may be sued for not providing them the same benefits you provide your other regular employees and exposed to penalties from the IRS for failing to properly withhold taxes.

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