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Independent Contractors

Discussion in 'Employment, Labor, Work Issues' started by ccorrea, Jun 28, 2003.

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  1. ccorrea

    ccorrea Law Topic Starter New Member

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    I am the owner of a pet sitting business and there is much ado on my forum site (for professional pet sitters) about independent contractors vs. employees. I'd like to consult with and get opinions from attorneys here at TheLaw.com.

    Pet sitters go to the homes of pet owners and take care of pets during 20-30 minute visits. They also perform midday dog walking services. These are the two major services for which commonly, as the business grows, requires some help if the business has many clients.

    Many of our members are insisting that pet sitting businesses that hire "independent contractors" to go on pet sitting assignments are not complying with the IRS if the people hired do not own their own pet sitting business themselves. They also state that by virtue of training someone, assigning them pet sitting homes to go to, even if the IC has the right to turn down an assignment, in itself defines the hired person as an employee and not an IC.

    The IRS website states that the employer that hires an IC cannot control the result or means for the IC to do their job. If an IC is trained by the pet sitting business owner, assigned pet sits as they are scheduled, are paid a percentage of each pet sit (on a per visit basis), are they considered really an employee and not an independent contractor? Most pet sitting businesses will indicate to the IC when pet sits will ened to be done, such as morning, afternoon, evening or night, or give a range of times within it is ok to do the visits. Is this considered directing the IC?
    At each home, essentially all pet sitters, whether owner of business or hired help, is following the instructions of the home owner.

    Thanks for your help and insight on this matter!
     
  2. Michael Wechsler

    Michael Wechsler Administrator Staff Member

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    That's a great question -- and this answer is just talk and not a legal consultation (a full consultation would require seeing all the paperwork and other relevant materials, etc. in a consultation with one of our attorneys pursuant to a short retainer agreement.)

    There are many cases which define what an IC is and is not. The easy answer is control and simply because the dog sitter may choose to decline a job does not necessarily make themselves an IC. My understanding is that a worker is an IC can be determined by a number of factors such as whether the worker was (a) incorporated or had a recognized business separate from the work performed for you; (b) whether the worker was paid personally or it was paid to the worker's company; (c) whether you could go to the home and control the worker's actions at the home such as instructing the worker to do or to restrain from performing certain tasks.

    I would ask you -- with regard to your training, is there a cost involved? How much "hands on" control and supervision is there on dog sitting work?

    This should give you an idea as to factors that may determine whether these individuals are truly independant contractors or actually people hired by you that do work for you and are paid a percentage of the job as employees.
     
  3. ccorrea

    ccorrea Law Topic Starter New Member

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    Response

    Thanks for your feedback. In response to your answer, there is no fee for training. The training consists of bringing new hires along to pet sitting assignments so that the routines, potential problems and safety issues are discussed or demonstrated (such as special treatments for animals, etc.). Once the "IC's" pick up their schedule and client files, there is little to no supervision, however, the owner of the pet sitting service is available for questions, problems and emergencies. There is also little hands-on control of the work performed by the "IC". Once they have the file with the owner's instruction forms, outside of the approximate time to show up at a client's home, the work is performed by the IC using their good judgement.

    The IC's used by most pet sitting services are not owners of their own business, for the most part. Some may have their own business in an unrelated field, and are pet sitting to supplement their income while growing a different business of their own.

    Thanks for your reply, perhaps you can elaborate a little more based on this new info.
     
  4. Michael Wechsler

    Michael Wechsler Administrator Staff Member

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    Re: Response

    It sounds like it could be an IC situation but I'm not sure exactly what the problem is and what needs to be "complied" with concerning an IC status. Typically this is an issue with regard to liability should something go wrong as well as ownership of intellectual property and taxes.
     

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