QUESTION: One of my employees who is currently laid off due to the pandemic and subsequent office closure is asking if I would consider hiring her as an independent contractor. She is an administrative staff person, and I could use her help. I don’t want to interfere with her ability to receive unemployment benefits, especially since I don’t have that much work for her to do. Is this an option for me to consider?
ANSWER: This is not a legally viable option. The current rules regarding independent contractors mean that she will not qualify as one. The law does not allow for employers to arbitrarily switch between employee and independent contractor at-will. Individuals may only qualify as independent contractors if both federal and state criteria are met, which is not easily done. The relationship with this employee would have to dramatically change in order to even consider this as a possibility.
If you need her help and she wants to work, then you can do that, but it would be the same as your normal employee-employer relationship that you’ve had all along.
Employees working reduced hours can still receive unemployment benefits in most states. I would encourage you to look at your local unemployment insurance program’s website to learn more about this. These departments will often state how much an employee can work and still receive unemployment compensation. Once you know that, you can have her work within those restrictions.
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