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Independent Contractor or Employee: How Government Agencies Make the Call
Your State Unemployment Compensation Board
If the worker meets your state unemployment compensation board's definition of independent contractor, you don't have to pay for unemployment insurance for the worker. If the worker does not meet this test, you should provide unemployment coverage for the worker, even if the worker qualifies as an IC under tests used by other agencies, such as the IRS.
To learn more about your state unemployment department's test, go to your state unemployment compensation board or your state department of labor. You can also try your local office of the Small Business Administration. For a list of SBA offices, check out the SBA's website at www.sba.gov.
If a worker whom you treated as an IC decides to apply for unemployment compensation -- which is reserved for employees -- it will be your word against the worker's. You say the worker was an IC, but the worker -- hungry for that unemployment check -- says otherwise. In such a situation, you'd better be prepared to back up your claim with documentation.
Your State Workers' Compensation Insurance Agency
If a worker meets your state workers' compensation agency definition of independent contractor, you don't have to pay for workers' compensation coverage for that worker. Otherwise, you should pay for workers' compensation coverage, even if the worker qualifies as an IC under other tests, such as the IRS test or your state unemployment board test.
To find out more about the workers' compensation test in your state, contact your state department of industrial relations or your state labor department. Your local office of the SBA might also have information on the subject. For a list of SBA offices, refer to the SBA's website at www.sba.gov.
If an IC is injured on the job and applies for workers' compensation -- something reserved for employees -- you might find yourself with an audit on your hands. You should be prepared from the beginning to prove that the worker was an IC under the workers' compensation board's test.
Your State Tax Department
If your state collects income tax, then you need to familiarize yourself with your state tax department's rules regarding ICs. If the worker will qualify as an IC under your state tax department's test, you do not need to withhold state income taxes from money that you pay the worker. Otherwise, you should withhold state taxes, even if the worker qualifies as an IC under other tests, such as the IRS test or the workers' compensation test. Contact your state tax board for details.>
The U.S. Department of Labor
Finally, if the U.S Department of Labor would consider a worker an IC, you don't need to pay the worker overtime when the worker works more than 40 hours in a week. Otherwise, you should pay the worker overtime, even if the worker would qualify as an IC under other tests, such as the IRS test or your state tax department's test. For more information about the U.S. Department of Labor's test for ICs, refer to the agency's website at www.dol.gov.
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