Preston A. Hawkins: Pitfalls to Misclassifying Employee, Independent Contactor

In the construction law realm, the proper classification of construction workers is a frequent topic.
Construction companies can get into a sticky wicket by misclassifying workers as independent contractors as opposed to employees. Determining whether a worker is an independent contractor or employee is sometimes clear, other times not so much.

To assist, the Tennessee Employee Misclassification Advisory Task Force (“TEMATF”) was created in 2011 and has provided a list of general characteristics. From these factors, an answer to the inquiry can usually be gleaned.

According to TEMATF,

An employee:

  • Has the means and manner of work controlled by employer (or can be)
  • May be trained by employer to perform job
  • May work at employer’s business location
  • Works for one employer, may serve that employer’s customers
  • Has work hours set by the employer
  • Accepts wage, salary or commission determined by the employer
  • May have employer provide and control equipment and tools; may have employer purchase materials and supplies
  • Is not liable for employee errors and/or accidents
  • Is hired and can be fired by employer
  • May quit working for an employer at anytime
  • May be required to wear specific attire while at work, such as a uniform or shirts with company logo

An independent contractor:

  • Is free from direction and control of the employer
  • Has necessary skills and training to complete job
  • Has a business location
  • Performs services for multiple customers
  • Sets own hours
  • Determines price for contracted services
  • Is not eligible for employee benefit
  • Provides equipment and tools used to complete job; supplies materials needed to do job
  • Is personally liable for errors and/or accidents
  • Files self-employment taxes
  • Has right to hire and fire workers
  • Must legally complete each contract

See the full article in the August 1, 2016 Knoxville Business Journal

Hawkins-3865Preston A. Hawkins, a shareholder in the Knoxville office, concentrates his practice in construction litigation, general commercial and tort litigation, and appellate advocacy. Mr. Hawkins has been lead trial counsel and successfully defended contractors, designers, and owners in various construction litigation matters. Mr. Hawkins has also represented business entities in various State and Federal courts in Tennessee and has obtained summary judgment on behalf of several corporate clients in state court cases.

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