Vigilant Blog

News, trends and analysis in employment law, HR, safety & workers' comp

Dec 05, 2012

Are My Independent Contractors Really Employees?

Q&AWage and Hour 

Q: We have always had independent contractors working alongside our employees in our drafting department. They don’t work for anyone else but it is common in our industry to classify these types of workers as independent contractors. I have recently been told by our new CFO that this classification may be improper. Are these people independent contractors?

A: Be careful with your independent contractor classifications. The Washington Supreme Court recently adopted an “economic dependency” test, which means that if an individual is economically dependent on the company, he or she is considered an employee under the state minimum wage law. If these individuals work exclusively for you and perform work that is similar to what your employees are performing, they are likely employees for wage and hour purposes.

To further complicate matters, a Washington Court of Appeals recently ruled that if the independent contractor was providing “personal labor,” then the employer was subject to workers compensation premiums on the individual, regardless of their contractor status. It seems likely that the individuals who are working for you are actually employees, for purposes of both wage and hour law as well as workers’ compensation coverage. And even if you have other individuals working for you who are true independent contractors under wage and hour law, it is possible that you might still have to carry workers’ comp coverage for them. These analyses are highly fact-specific, and state laws differ, so you should seek advice from your Vigilant staff representative.

This website presents general information in nontechnical language. This information is not legal advice. Before applying this information to a specific management decision, consult legal counsel.