Chapter § 5.4

• Jurisdiction: New York

[5.4] What is an "independent contractor"? ¹¹

Independent contractors are not employees, and are not covered by the WCL.¹² However, an employer cannot avoid WCL responsibility simply by calling someone an independent contractor, so it is important to understand the difference between and independent contractor and an employee.

The factors that a workers' compensation law judge will consider in determining whether an individual is an independent contractor, and not an employee, include the following:

1. Does the individual control the time and manner in which the work is to be done?

2. Has the contractor obtained a Federal Employer Identification Number from the Federal Internal Revenue Service, or has it filed business or self-employment income tax returns with the IRS based on work or service performed the previous calendar year?

3. Does the individual maintain a separate business establishment from the business to which he or she is rendering service?

4. Does the individual perform work that is different than the primary work of the business to which he or she is rendering service, and does he or she perform work for other businesses?

5. Does the individual operate under a specific contract, with responsibility for the satisfactory performance of the work, and subject to profit or loss in performing the specific work under the contract (so as to be in a position to succeed or fail if the business's expenses exceed...