In a 2006 report on employee misclassification, the U.S. Government Accountability Of-fice highlighted the many inconsistencies in classification standards and aptly observed that “the tests used to determine whether a worker is an independent contractor or an employee are complex, subjective, and differ from law to law.”83 That observation remains true today. Indeed, not only do the tests vary, but so does their interpretation. Outcomes may vary from jurisdiction to jurisdiction and indeed from case to case. Navi-gating this legal maze can be challenging and treacherous. Any company doing business in the United States should tread with caution when hiring independent contractors and seek legal advice to manage the complexi es of the legal landscape.
The use of independent contractors remains a viable and often a valuable means to supplement a company’s labor force. In light of increasing state and federal regulatory focus and ever-increasing class action activity, however, it is important that employers (particularly those in scrutinized industries) assess the applicable laws in their jurisdic-tion, implement lasting changes across their organization which accurately distinguish between employees and independent contractors, and (where independent contractors are used) document and structure independent contractor relationships in a compliant manner.