You hire someone under the assumption they are an independent contractor. You genuinely believe they are an independent contractor. However, the law may hold otherwise. Whether your hire  an independent contractor or employee depends on several factors, all speaking to how much control you have over the “manner, means, and results” of the work to be done.

These are the factors a court will use to determine whether you are in control:

  • When, where, and how services are performed
  • Providing of facilities, equipment, tools, and supplies
  • Direct supervision
  • Setting the hours of work
  • Exclusivity of work (cannot work for competitors)
  • Setting the rate of pay
  • Meeting attendance/training
  • Oral or written reports
  • Reserving the right to review/approve the work]
  • Job performance evaluation
  • Requiring prior permission for absences
  • Right to hire and fire
  • How an individual is paid (hourly, weekly, etc.)
  • Nature of services performed (skilled or unskilled labor)

Additionally, here are some tips that can help in litigation:

  • Pay your independent contractor per project and not in a fixed way
  • Keep independent contractors separate from your employees
  • Do not restrain them from working on similar projects elsewhere
  • Avoid micro managing independent contractors

Always use an independent contractor agreement when you intend for this type of relationship. James A. Dibbini and Associates P.C. has over 20 years of experience in drafting contracts and contract related litigation. If you need help with any aspect of independent contractor agreements, give us a call at give us a call at (914) 965-1011 or email us at to learn more.