EEOC and the Independent Contractor

Factors that the EEOC considers when determining whether a worker is an employee or independent contractor. The worker is an employee if ANY of the following apply:

• the firm or the client has the right to control when, where, and how the worker performs the job;


• the work does not require a high level of skill or expertise;


• the firm or the client rather than the worker furnishes the tools, materials, and equipment;


• the work is performed on the premises of the firm or the client;


• there is a continuing relationship between the worker and the firm or the client;


• the firm or the client has the right to assign additional projects to the worker;


• the firm or the client sets the hours of work and the duration of the job;


• the worker is paid by the hour, week, or month rather than for the agreed cost of performing a particular job;


• the worker has no role in hiring and paying assistants;


• the work performed by the worker is part of the regular business of the firm or the client;


• the firm or the client is itself in business;


• the worker is not engaged in his or her own distinct occupation or business;


• the firm or the client provides the worker with benefits such as insurance, leave, or workers' compensation;


• the worker is considered an employee of the firm or the client for tax purposes (i.e., the entity withholds federal, state, and Social Security taxes);


• the firm or the client can discharge the worker;


• the worker and the firm or client believe that they are creating an employer-employee relationship.

If a worker who was dubbed an independent contractor is evaluated to have been an employee after the fact then back taxes, payments, and penalties may be due to the EEOC and IRS (among other entities).

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