OFCCP posts new FAQs on employee vs. independent contractor determinations

From HR.BLR.com — “Q: What are the Darden factors?

A: The Darden factors that should be considered when determining whether an individual has an employment relationship with a contractor are listed below:

The contractor’s right to control when, where, and how the individual performs the job. The degree to which the contractor retains the right to direct and control how and when an individual performs his or her work is a strong indicator of whether an employment relationship exists, regardless of whether the contractor exercises that right. If the contractor retains substantial control over when, where, and how the individual performs work, that is a strong indicator that the individual is an employee. However, if the contractor has little control over the manner in which the work is performed, that may indicate that the individual is not an employee.

The skill required for the job. Independent contractors typically have their own methods for doing the work and are hired because of their specialized knowledge and expertise, or because such expertise is not routinely used in the contractor’s business. However, if the work performed by an individual does not require such specialized skills or is a regular part of the contractor’s normal business, this is an indicator that the individual may have an employment relationship with the contractor.

The source of the instrumentalities and tools. Generally, independent contractors procure and use their own equipment and materials needed to perform the work they are hired to do. If the contractor furnishes the tools, materials, and equipment for the individual to work, this will tend to show the existence of an employment relationship between the individual and the contractor.

The location of work. If the individual works at a location that is owned or controlled by the contractor, this may be an indicator that the individual is an employee, particularly if the individual’s work can be performed elsewhere. However, if the individual retains the discretion to perform the work at another location, this may indicate a nonemployee status.

The duration of the relationship between the parties. An extended, continuing relationship between the individual and the contractor without a predefined duration may indicate the existence of an employment relationship. Independent contractors generally do not have such an extended relationship since they usually perform discrete tasks over a predetermined period of time that is agreed upon by the parties.

Whether the contractor has the right to assign additional projects to the individual. Independent contractors typically agree to provide very specific services to a company and usually have the freedom to accept or decline additional jobs. If the contractor has the right to assign additional work to an individual at its discretion, then this may indicate the existence of an employment relationship.

The extent of the individual’s discretion over when and how long to work. If the contractor exercises control over the hours that the individual begins work and the duration of the workday, then this may indicate that an employment relationship exists. Independent contractors are usually constrained by timeframes for deliverables, but can exercise discretion over when they begin work and how long their workday is within those general constraints.

The method of payment. Independent contractors are generally paid an amount that is agreed upon in advance for performing a particular job. If an individual is paid a regular salary or is paid by the hour, week, or month, that may indicate the existence of an employment relationship.

The contractor’s role in hiring and paying assistants. Employees generally do not hire and pay for their own assistants. If the individual has discretion to hire and pay for his or her own assistants without the approval of the contractor, that may indicate that the individual is an independent contractor.

Whether the individual’s work is part of the regular business of the contractor.  Employees typically perform jobs that are a regular or routine part of the employer’s business, while independent contractors generally perform specialized work that lies outside of an employer’s normal business.

Whether the contractor is in business. Employees are usually not engaged in their own separate business (or the business of another entity) when performing work for the contractor. Independent contractors, however, are usually engaged in their own separate business when they perform work for the contractor.

The provision of employee benefits to the individual.  Employees typically receive benefits from the contractor, such as health insurance, life insurance, leave, or workers’ compensation, while independent contractors do not normally receive such benefits from the contractor…”

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