The Misclassification of Employees as Independent Contractors
“In today’s strained fiscal environment, both federal and state governments are taking enhanced steps to combat employer misclassification. On the federal level, the IRS audits employers for unreported federal taxes stemming from misclassification. States, meanwhile, are passing initiatives and laws to protect employees and crack down on unlawful employers.”
“In terms of legislation, states are beginning to pass laws creating a “presumptive employee status.” These laws presume that workers are employees of an employer, not independent contractors, and therefore it is the responsibility of the employers to overcome this presumption by proving that their workers are instead genuinely independent.”
” ‘Under common-law rules, anyone who performs a service for you is your employee if you control what will be done and how it will be done. This is so even when you give the employee freedom of action. What matters is that you have the right to control the details of how the services are performed.” Simply put, most dental hygienists work under some sort of supervision of a dentist, see the dentist’s patients, and use the dentist’s equipment.”
“An independent contractor is a self-employed professional who exercises independent judgment and renders services as specified in a contract. The independent contractor will have greater control than an employee in terms of hours, fees, personal work routines, appointment book control, and treatment and planning.
Is the worker responsible for securing all of his/her own patients, or are patients provided by the engaging entity?
Does the engaging entity have the right to control fees, payment and collection policies to patients?
Who provides the instruments and equipment and determines whether there is a designated time for when and where to perform the work, what order or sequence to follow, and who can hire workers to assist with the job.”
American Dental Association
“CDA has received feedback from several attorneys regarding the classification of hygienists and they advised that dentists err on the side of caution and classify them as employees.”