UI and Independent Contractors
Even if your employer hired you to work as an independent contractor, the law may still consider you an employee. This means you may qualify for unemployment insurance (UI) benefits.
We consider whether there is an employer-employee relationship based on several things. These include how much supervision, direction and control your employer has over your work.
Who is an Employee?
The way you are paid is a sign of worker status. Employees usually earn:
- A salary
- An hourly rate of pay or
- A draw against future commissions (with no need to repay unearned commissions)
Employees also may get certain fringe benefits. For example: an allowance or repayment for business or travel expenses.
The nature of the work done also helps decide if a worker is an employee or an independent contractor.
Unskilled or casual workers are often employees because they work under supervision. However, even professionals such as doctors and lawyers (with much freedom to do their work) may be employees if they are subject to significant control.
Workers may be employees if the employer controls key parts of the work done, other than results and means.
For example, a referral agency usually does not directly supervise the people it refers for jobs. But, it could be their employer, if it controls:
- Client contact
- Billing and collection from clients
Who is an Independent Contractor?
Independent contractors perform their duties free from:
They are in business for themselves, as they offer their services to the public.
Signs of independent contractor status include a person who:
- Has an established business
- Advertises in the electronic and/or print media
- Buys an ad in the Yellow Pages
- Uses business cards, stationery and invoices
- Carries insurance
- Keeps a place of business and invests in facilities, equipment and supplies
- Pays their own expenses
- Assumes risk for profit or loss
- Sets their own schedule
- Sets or negotiates their own pay rate
- Offers services to other businesses (competitive or non-competitive)
- Is free to refuse work offers
- May choose to hire help
For example, if your employer gives you a 1099 form rather than a W-2 form, you may still be an employee. You may be an employee under the law, even if:
- Your employer makes you sign a statement that you are an independent contractor
- You waive any rights as an employee
- Your employer makes you obtain a DBA to work for them
Under Unemployment Insurance Law, an agreement by employees to waive their rights under the law is not valid.
The statute excludes or covers certain types of services, regardless of the degree of direction and control.
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