Working World

I work as a traveling art teacher for a company that sends me to different schools to teach. The company markets the programs, bills and collects payments. The company tells teachers where to be, when to be there, and what and how to teach the classes. We wear company shirts and the company provides all of the equipment needed for the classes. We are paid on a per-class basis. The company purchases liability insurance “for” us, but deducts the cost from our pay. The company had us sign “independent contractor agreements,” and we get stuck with a lot of taxes and expenses. Shouldn’t the company be treating us as employees?

From the facts you have given me, it looks as though you are not truly an independent contractor, but rather an employee. The IRS, the Employment Development Department and other state agencies use a variety of tests to determine whether a worker is truly an independent contractor, but they all focus on whether the employer has the right to control the worker.

Some of the factors that the IRS considers that weigh in favor of employee status are:

• Providing instructions to the worker, which the worker must follow;
• Providing training to the worker;
• Setting the worker’s hours of work;
• Furnishing the worker with tools and equipment;
• Doing work on the employer’s premises;
• Payment by the hour, week or month, rather than for a specific job;
• Payment of business and travel expenses.

Some of the factors that the IRS considers that weigh in favor of independent contractor status are:

• The worker having a significant investment in equipment and facilities;
• The worker having the possibility of realizing a profit or loss;
• The worker performing services for more than one firm at a time;
• The worker making services available to the general public.

As you can see, applying these factors to your situation suggests that you are an employee in the eyes of the law.

Amy Semmel is an attorney with the firm of Donfeld, Kelley & Rollman. Her practice emphasizes employment, trade secret and business tort law. The information discussed here is a general explanation of the law, and is not intended to serve as legal advice. Readers requiring legal advice regarding a specific situation should consult an employment attorney.