What You Need to Know Before Hiring an Independent Contractor in the U.S.

When you run a business, not everyone who does work for your company is considered an employee. Some may be considered independent contractors. For example, maybe you’ve outsourced the design of your website to an external web designer, or you’ve hired a freelance copywriter to create some marketing brochures for you. These workers aren’t considered your employees—they’re independent contractors.

This is more than just a difference in title—the IRS has very specific requirements someone must meet to be considered an independent contractor. In fact, the independent contractor classification is often scrutinized, so you don’t want to get this wrong.

Our guide will walk you through what you need to know before hiring a contractor.

What Is an Independent Contractor?

The IRS has a general rule about who qualifies as an independent contractor. Its definition is: “An individual is an independent contractor if the payer has the right to control or direct only the result of the work, and not what will be done and how it will be done.”

In practice, independent contractors generally have flexible work hours, options to work from home, and set their own rate. They’re also considered self-employed, which means they’re responsible for paying self-employment tax, and the company they do work for does not need to provide them with benefits.

The IRS isn’t the only organization that defines who qualifies as an independent contractor and who qualifies as an employee. Many states have adopted another set of more stringent requirements to be considered an independent contractor, known as the ABC test. This test has three separate criteria a person must meet in order to qualify as an independent contractor, rather than an employee:

1. The worker is free from the employer’s control or direction in performing the work
2. The work takes place outside of the company’s usual course of business, and off-site of the business
3. Customarily, the worker is engaged in an independent trade, occupation, profession, or business

Both the IRS requirements and any state-specific requirements are important to pay attention to because improperly classifying an employee as an independent contractor could saddle you with some big fines.

If you’re not sure whether the person you’d like to hire will be considered an employee or independent contractor, it’s a good idea to consult with an employment attorney who is knowledgeable about your state requirements.

The IRS also offers a review process where you can submit information about the situation, and they will offer advice as to whether the person would be considered an employee or an independent contractor. But they won’t advise you on any state-specific requirements your business might be subject to.

Pros to Hiring an Independent Contractor

There are a lot of benefits to hiring a contractor that might be helpful to business owners, including:

Cost Savings

When you hire an employee, you have expenses that extend beyond their hourly rate. It’s also your responsibility to pay for:

• Office space to work from
• Equipment needed to perform their tasks (i.e., computers and software)
• Worker’s compensation insurance
• Unemployment insurance
• FICA taxes (Social Security and Medicare)
• Benefits such as health insurance and paid time off

When you hire a contractor, you’re only responsible for paying their fee. You don’t need to pay for their benefits and they’re required to pay self-employment taxes rather than FICA tax.

You might find that contractors are paid a higher hourly rate than employees, but because you’re not paying these additional benefits, you’ll usually end up saving more money overall.

Increased Flexibility

If your business has a lot of varied needs—say you need someone to do social media marketing, copywriting, and website updates—it can be difficult to find one employee that can handle all of those tasks well. Instead of having to hire one person to do all three jobs, or hire three separate people to handle these varied tasks, you can work with independent contractors.

This gives you access to everything from high-level network administration to top-tier copywriting.

You can also use contractors to manage increases in your business workload. Beyond having more skills at your disposal, contractors will enable your business to respond quickly to unexpected surges in business.

For example, say you run a CPA practice. There was recently a change to the tax law and you need to write new guides for your clients explaining the changes. You might hire an independent contractor who specializes in writing to help produce new materials for your clients. Since you don’t need them for long and this likely isn’t a full-time job, it could be the perfect role for an independent contractor.

Reduced Training Expenses

When you hire an independent contractor, you’re selecting from a wide array of specialists. It’s assumed that you won’t have to provide any paid training—they’re ready to go.

The only training required will be your onboarding procedure, which involves learning your policies and tailoring their skill set for your needs. You can easily automate this process with documented workflows, processes, and training materials.

Keeping with the CPA practice example, the writer should already be trained in how to write for clients, and how to take complex topics and break them down into easy-to-understand articles. You won’t have to train them on this, but you’ll need to give them any writing style guidelines that are specific to your firm.

Cons of Hiring an Independent Contractor

Everything isn’t always perfect when you hire an independent contractor. There are some drawbacks that you should consider before you use one for your business.

Increased Scrutiny

There’s no way to guarantee that you won’t get audited by the IRS, but it’s important to note that using independent contractors has led to an increased risk of audit.

The IRS wants to ensure that companies haven’t misclassified workers who should be employees as independent contractors in an effort to save money on income taxes. With an independent contractor, business owners don’t have to provide benefits, pay unemployment insurance, withhold income taxes, or pay Social Security and Medicare taxes.

These cost savings can be motivation for employers to misclassify their employees, which is why the IRS imposes fines and penalties on companies doing this.

Turnover and Lack of Loyalty

You’re not going to build a loyal workforce with independent contractors. They come and go as needed. Contractors are drawn to this type of work largely because it gives them greater control over who they work with. Additionally, most businesses hire contractors for short-term jobs, which makes it difficult to cultivate loyalty.

Relying too heavily on contractors means dealing with a higher turnover rate than employees. You also risk losing your contractor without notice if a higher paying project comes along.

Potential Legal Issues

If you haven’t picked up on this recurring theme: You need to keep legalities in mind.

In addition to your lack of control, you also need to make sure contracts and paperwork are in order. Failing to outline expectations in a written agreement could mean that you don’t actually own the copyright to the work.

When you work with an employee, work created by them is automatically owned by the organization. With contractors, it must be specifically stated in a legal document.

What Documents Are Needed When Hiring a Contractor?

Hiring a contractor means a lot less paperwork than hiring an employee. But there are still a few things you’ll want to collect:

• Form W-9: You’ll need to collect tax information—Employer Identification Number (EIN) or Social Security number—before you begin paying an independent contractor. Use IRS form W-9 to request that information. You don’t need to submit the W-9 form to the IRS, but keep a copy of it in your records in case the IRS asks to see it.
• Resume: This isn’t required but you’ll likely want to get a resume for anyone that you hire, even if they’re an independent contractor. You’ll get a good understanding of their work experience and their qualifications.
• Check references: Ask for references from previous clients and check up on those references, to ensure they’re a good fit for your job. You may also want to perform a background check to ensure they’re in good standing.
• Signed contract: Work shouldn’t be done without a contract signed by both parties in place. This helps to clear up any misunderstandings that may arise in the future. Be sure the contract covers the duration of the work, the pay, and intellectual property rights.

How to Pay an Independent Contractor

Paying a contractor is much simpler than paying an employee. That’s because you’re generally not required to withhold taxes or pay unemployment insurance for an independent contractor.

The only time you’re required to withhold taxes from a contractor’s paycheck is if they are subject to backup withholding. Independent contractors might be subject to this if they didn’t provide you with their correct taxpayer identification number, or if they previously haven’t reported income that they should have (like dividend income).

When it’s time to pay your independent contractor, you can do so via whatever payment method is most convenient for you: Check, direct deposit, PayPal, or via your payroll provider.

At the end of the year, you’ll need to report payments made to independent contractors that are greater than $600 on Form 1099-NEC (previously Form 1099-MISC). This form gets filed with the IRS and a copy is sent to the independent contractor as well.

Do You Need an EIN to Hire an Independent Contractor?

If you’re a sole proprietor or a single-member limited liability company (LLC) and you don’t have an EIN, there’s no need to get one. You can use your Social Security number to hire an independent contractor.

A Final Note

The differences between an independent contractor and an employee may seem insignificant at first glance, but the IRS takes them very seriously. Do your research, speak with a professional, and ensure you properly classify workers as either employees or independent contractors. Once you understand the differences, you’ll know which requirements you need to adhere to, and how not to end up in hot water with the IRS.

This post was updated in October 2020.