A community of 30,000 US Transcriptionist serving Medical Transcription Industry


employees misclassified as ICs - Hopeful


Posted: Dec 02, 2011

Some in the media seem to have discovered this problem, although the article calls it a "new" ruse. I followed the links and read the comments, sounds like there may be some hope for the IC's that are doing exactly what they used to do as employees back when we had benefits. Couldn't happen soon enough for me! http://politics.salon.com/2011/10/07/truckers_driven_to_the_shadows/singleton/

No Gray Area - IC vs Employee - YYYawn

[ In Reply To ..]
To those who embrace the status of independent contractor, read no further. We know how absolutely ecstatic you are that no taxes, WC insurance or SS contributions are paid by the company for whom you perform services. No need to defend your status for wanting to receive a few bucks more on your paycheck; we get it.

For those who are "unwillingly" working as ICs, this defines it for most states:

Although the changes in labor law in 2008 primarily addressed construction workers and truck drivers employed by the construction industry, the entire code applies to all of us.

The code is explained more fully below; however, basically, if a company issues directives, specific instructions by which a service is to be carried out(adherence to account specifics, preferences, etc.), the person providing the service is an EMPLOYEE. If the company provides tools to the person who will provide the service("tools" includes virtual tools, i.e., licensed software apps, licensed platforms, reference materials, etc.), the worker is an EMPLOYEE.

We've been reading it for years; no one enforces it.

"To prove that an individual performing such work is not an employee, a contractor must satisfy either (1) a three-part independent contractor test set forth in the statute or (2) a 12-factor test showing that anyone performing the service is a "legitimate" sole proprietor or partnership.

The three criteria that must be met to satisfy the independent contractor test under the new law are:

1) The individual must be free from control or direction over the performance of the contract.

2) The service performed by the individual must be outside the usual course of business of the contractor (contractor meaning "company", "employer").

3) The individual ("worker") must be involved in an independently established trade, occupation, profession or business from that of the contractor. The statute does not appear to permit a balancing of these criteria to determine independent contractor status as is more typically the case under the common law standard. Thus, for example, even if there is no "right to control" the performance of the work, the individual may still be considered an employee if the service he or she performs is not outside the usual course of business of the contractor (contractor here meaning "company", "employer", one who contracts out services).

The sole proprietor/partnership exception contains a detailed 12-factor test analyzing various aspects of the relationship between the individual performing services and the construction contractor. To meet this exception, all 12 of these criteria must be satisfied, demonstrating that the independent contractor:

1.Is free from direction or control over the means and manner of providing the service (X)

2.Is not subject to cancellation or destruction upon severance of the relationship with the contractor (X)

3.Has substantial investment beyond ordinary tools and equipment and a personal vehicle (X)

4.Owns the capital goods, gains the profits and bears the losses (X)

5.Makes its services available to the general public on a continuing basis (X)

6.Includes services rendered on a federal income tax schedule as an independent business or profession (X)

7.Performs services under its own business name (X) (Loads of MTs use SS# and birth name)

8.Obtains and pays for the license or permit in its business name (X) (Company holds the software, platform licenses).

9.Furnishes its own tools and equipment (X) (See above)

10.If necessary, hires its own employees, pays the employees without reimbursement and reports the employees' income to the Internal Revenue Service (X) (MTs not allowed to further contract work out)

11.Is not represented as an employee of the contractor to customers (X) (Details not generally provided to customers).

12.Has the right to perform similar services for others on whatever basis and whenever it chooses (?) (Questionable per company).

YYYawn - Old Pro

[ In Reply To ..]
Thank you for posting this. It is extremely valuable! Too many newbies hang out their shingle, so to speak, and voila! they think they are automatically an "independent contractor." I truly think all newbies should take a basic business course from their local university or community college, or perhaps link up with SCORE or the SBA. Lots of heartache could be avoided if they would only do this.


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