What is the Difference between: Subcontractor v …

1 19 October 20161 What is the Difference between : Subcontractor v vendor v temp labor v consultant & consultant v Employee[& Properly Categorizing Matters!]Presented by Association of Government Accountants andNational Contract Management Association19 October 20162 Today s Guest Speakers: Cathy Akin, Human Resources consultant Akin & Associates Nick Sanders, consultant Apogee Consulting, October 20163 What is the Difference between an Independent Contractor, Subcontractor , consultant , and Temporary Worker? Subcontractor , consultant , Temporary Worker and vendor ?Cathy AkinAkin & Associates19 October 20164 Independent Contractor Terms Subcontractor Consultant19 October 20165 Independent Contractor Self-employed No benefits Sets own hours and how the assignment is completed May have client contact Pays own taxes per IRS Form 1099 Provides services that are not core competencies of business19 October 20166 Subcontractor Definition Independent Contractor in all legal respects including tax obligations, 1099 Accepts an assignment working for another independent contractor/Company who has a larger contract to complete a project Profits from helping to meet needs and provide solutions for another s client Works within the contract terms of the general contractor (SOW)

2 Has no direct contact with client19 October 20167 consultant Definition Generally, a consultant is a self-employed independent businessperson who has a special field of expertise or skill. The consultant provides professional or expert opinion, advice or services regarding information or materials in his or her field of knowledge or training to assist others in making decisions or in performing October 20168 Subcontractor vs. ConsultantSimilarities Both are independent contractors Not employees or agents for the Contractor Do not establish direct employment relationships Limits potential liability of the Contractor to just the explicit agreement Offer expertise that Contractor does not have Both potentially offer reduced cost and risk mitigation to the Contractor Posses expertise or facilities the Contractor does not have19 October 20169 Subcontractor vs.

3 ConsultantDifferences Scope of Work Subcontractor : defined scope of work and/or an identifiable segment of a project consultant : very specific area based on expertise, specific problem to solve Subcontractor : the end results of entire project are the goal consultant : Project may have shorter milestones Contract type Subcontractor : firm fixed, time & material, cost type19 October 201610 Temporary Workers Provides another pair of hands May contribute to the core business Hired through third party agency Agency provides workers, benefits and payroll Co-Employment19 October 2016111099 vs W-2 Independent Contractor (Self-Employed)or Employee?19 October 201612 Top 3 Determining Factors Behavioral: Does the company control or have the right to control what and how the worker does his/her job? Financial: Are the business aspects of the job controlled by the payer?

4 Type of Relationship: Are there contracts or benefits? Will the relationship continue after completion of assignment? Is the work performed a key aspect of the business?IRS is currently putting more weight on the financial aspects of the relationship19 October 201613 Behavior Control Instructions the business gives the worker An employeeis generally subject to the business instructions about when, where, and how to work. All of the following are examples of types of instructions about how to do work: When and where to do the work What tools or equipment to use What workers to hire or to assist with the work Where to purchase supplies and services What work must be performed by a specified individual What order or sequence to follow19 October 201614 Behavior Control (Cont d) Training the business gives the worker An employee may be trained to perform services in a particular manner.

5 Independent contractors ordinarily use their own methods. Independent Contractors do not provide skills that are core to the business19 October 201615 Financial Control The extent to which the worker has unreimbursed business expensesIndependent contractors are more likely to have unreimbursed expenses than are employees. Fixed ongoing costs that are incurred regardless of whether work is currently being performed are especially important. CAUTION: employeescan incur unreimbursed expenses in connection with the services they perform for the include (not limited to):Computer/cell phone, employment related education, passport for business trip, tools & supplies, medical exam19 October 201616 Financial Control (Cont d) The extent of the worker's investmentAn employee usually has no investment in the work other than his own time. An independent contractor often has a significant investment in the facilities he uses in performing services for someone else and can suffer a financial loss.

6 However, a significant investment is not necessary for independent contractor October 201617 Financial Control (Cont d) The extent to which the worker makes services available to the relevant marketAn independent contractor is generally free to seek out business opportunities. Independent contractors often advertise, maintain a visible business location, and are available to work in the relevant October 201618 Financial Control (Cont d) How the business pays the workerAn employeeis generally guaranteed a regular wage amount for an hourly, weekly, or other period of time. This usually indicates that a worker is an employee, even when the wage or salary is supplemented by a commission. An independent contractoris usually paid by a flat fee for the job. However, it is common in some professions, such as law, to pay independent contractors October 201619 Financial Control (Cont d) The extent to which the worker can realize a profit or lossSince an employer usually provides employeesa workplace, tools, materials, equipment, and supplies needed for the work, and generally pays the costs of doing business, employees do not have an opportunity to make a profit or independent contractor can make a profit or October 201620 Type of Relationship Written contracts describing the relationship the parties intended to createThis is probably the least important of the criteria, since what really matters is the nature of the underlying work relationship, not what the parties choose to call it.

7 However, in close cases, the written contract can make a October 201621 Type of Relationship (Cont d) Whether the business provides the worker with employee-type benefits, such as insurance, a pension plan, vacation pay, or sick pay The power to grant benefits carries with it the power to take them away, which is a power generally exercised by employers over employees. A true independent contractor will finance his or her own benefits out of the overall profits of the October 201622 Type of Relationship (Cont d) The permanency of the relationshipIf the company engages a worker with the expectation that the relationship will continue indefinitely, rather than for a specific project or period, this is generally considered evidence that the intent was to create an employer-employee October 201623 Type of Relationship (Cont d) The extent to which services performed by the worker are a key aspect of the regular business of the companyIf a worker provides services that are a key aspect of the company's regular business activity, it is more likely that the company will have the right to direct and control his or her activities.

8 For example, if a law firm hires an attorney, it is likely that it will present the attorney's work as its own and would have the right to control or direct that work. This would indicate an October 201624 How Do I Know the Difference ?There is no magic or set number of factors that makes the worker an employee or an independent contractor, and no one factor stands alone in making this determination. Also, factors which are relevant in one situation may not be relevant in October 201625 Benefits and Risks Contractor: No OT or minimum wage No employee benefits No Federal, state and Social Security (FICA) taxes If misclassified employer will be held liable for taxes (IRS Voluntary Classification Settlement Program VCSP) Short-term relationship / commitment Can be more expensive for long projects19 October 201626 Benefits and Risks(Cont d) Employee: Control over work, hours and resources Long-term relationship Beneficial for company culture / retention Must pay taxes Turnover costs Risk of bad hire 19 October 201627 References ,,id=99921, IRS advises that if after reviewing the three determining factors, it is still unclear whether a worker is an employee or an independent contractor, Form SS-8, Determination of Worker Status for Purposes of Federal Employment Taxes and Income Tax Withholding (PDF) can be filed with the IRS.

9 The form may be filed by either the business or the worker. The IRS will review the facts and circumstances and officially determine the worker s status. For more information visit Box 462731 Escondido, CA. 92046 760 432 0774 Classifying Workers Correctly There are three main categories of worker: Employee, Temporary Worker, and Independent Contractor Determine what the worker will be doing: What are the specific tasks? How will the worker be measured? How much direction will the worker receive? Is the worker contributing to the core business of the company? o For example: An engineering company which engages a marketing, IT or Human Resources worker does not violate the core business rule and can classify the worker as an Independent Contractor if other requirements are met. Also, if the engineering company engages an engineer with an expertise that the company does not have (and doesn t intend to have in the future), the worker can be classified as an o However, if the engineering company engages an engineer to perform tasks that are part of the company s core business, the worker is not an Independent Contractor.

10 Employee: Receives work direction from the employer. Has an indefinite term of engagement. Has no contractual agreement. Can contribute to the core business of the company. Suffers no financial risk. Receives reimbursement for expenses. Receives W 2. Temporary Worker: (Note: a temporary employee is included in the company payroll, a temporary worker is an employee of a third party firm.) Additional staff is needed to cover a spike in work Another pair of hands . Acquired through third party agency which is responsible for taxes, benefits, etc. Beware: Co employment o Employer has joint responsibility with the agency for legal issues such as discrimination, sexual harassment, bullying, etc. Box 462731 Escondido, CA. 92046 760 432 0774 o Recent case: NLRB charge against McDonald s Corporation (Franchise situation) Independent Contractor: Has a bona fide business (business license, insurance, own equipment, etc.)