Especially interesting is the ABC test, now used by 33 states in the U.S. Here is an excerpt from this article regarding this test:
State Laws and Regulations for Independent Contractors
Workers can be considered employees under state law even if they are not considered employees under federal law, and several states have more strict definitions for ICs.
Some states, including Florida, Iowa, and Michigan use the IRS common law test (or a variation) described above.
Other states, including California, New Jersey, and Virginia, use a more restrictive worker classification test called an ABC test.
The ABC test considers a worker to be an employee unless all of the three criteria are satisfied:
A: The worker is free from control and direction of the hiring entity
B: The worker performs work outside the entity’s usual course of business
C: The worker is customarily engaged in an independent trade, occupation, or business of the same nature as the work performed for the hiring entity9
As of October 2019, 33 states had implemented the ABC test or a slight variation of it. Check with your state’s labor department for information on its test for classifying workers.10
THE MOST STRIKING PART OF THIS EXCERPT IS A., WHICH SAYS:
"The worker is free from control and direction of the hiring entity."
I AM PRETTY SURE WE ALL FEEL WE ARE THE EXACT OPPOSITE OF THIS DESCRIPTION IN OUR RELATIONSHIPS WITH MSC'S, ESPECIALLY CONSIDERING HOW OFTEN WE ARE INSTRUCTED AS TO:
1) EXACTLY HOW TO DO OUR INTERACTIONS AND PURCHASES
2)WHAT WILL RESULT IN NON-PAYMENT AND NON-REIMBURSEMENT
Opinions, comments? Will the Biden administration's Department of Labor fundamentally change how we are treated, paid, and re-imbursed?
My thoughts is I don't wanna be no stinking employee.
And I seriously doubt I would be "hireable", despite experience, as I am 100% disabled, and IC status allows me to work or not work. And believe me, some days I just physically cannot get in my car and go!
A) I am totally outside the control of the MSC's with which I work: I take work - or not - at my leisure. They don't tell me where to go or what to do. They over little "jobs." Whether or not I choose to take them is a different matter entirely.
B ) This is the only one that might be like splitting hairs.... The MSC's business is to contract with clients to create shopping opportunities. The MSC does not perform the shops - that's not what they do.
C) As most of us are registered with many MSC's and sign ICA's stating that we are free to do so, this shouldn't be an issue.
I think we are pretty much all safely considered "IC's."
Hard work builds character and homework is good for your soul.
Edited 2 time(s). Last edit at 03/01/2021 08:55PM by MFJohnston.
I think many of us who have worked as an employee would easily see the differences between this job and the employee job. Number one for me is I do not have to clock in every day in the morning and explain myself if I want a day off and risk getting fired if I take too many sick days without filling out a 20 page form and getting a docs note after three days off.
Our agreement with the MSC is that we provide a service to the client’s instructions. This is how they get around that portion. We still have a choice on many aspects on most shops (day, time, etc.) we also have a choice on whether to accept the client’s instructions and do the shop or pass. I have my business set up as a corporation so they can 1099 my corporation, although now they don’t have to. It’s up to me to reports my business’ profit/loss. I’m with others I have no desire to be a MSC’s employee. I like my freedom way too much.
I'm thinking of a company I work with. They send me assignments in my area. They never ask. If I were to decline, it would be a problem unless I provide a valid reason (like illness). When I told them I was unavailable for two weeks last year, they couldn't quite get that straight and I didn't receive any work for several weeks after I was available.
The work I perform is an integral part of their business.
I signed up with another company that does the exact same thing company 1 does. I have my availability set in their portal. They email me projects and I can accept or decline. The work is integral to their business so I would say they pass the IC test.