Creating a Workable Legal Standard for Defining an Independent Contractor

Elizabeth Milito, National Federation of Independent Business

Abstract

The attached Article proposes a workable legal standard for defining an independent contractor. Determining whether a particular worker should be classified as an employee or an independent contractor currently depends upon fact-specific circumstances of the working relationship. Although current legal approaches are meant to be flexible, the open-endedness of the current tests means that many business owners struggle with fitting their employees into the proper categories. Furthermore, inconsistent standards among both state and federal agencies increase the legal uncertainty that business owners face. As the number of businesses using non-traditional work arrangements increases, the problem is likely to become more widespread.

The Article addresses the problems associated with the existing legal standards for independent contractor classification and explains why a clear, bright line test – the “step-back” test – is a necessary and optimal solution. I hope you will accept the piece for publication. Warm regards, Elizabeth Milito Senior Executive Counsel National Federation of Independent Business Small Business Legal Center 1201 F Street, NW, Suite 200 Washington, DC 20004 202.406.4443 - direct 615.916.5156 – fax elizabeth.milito@nfib.org