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Independent Contractors

Independent contractors are increasingly used by employers who in the past would have utilized full-time employees.  The law surrounding independent contractor status arises in several substantive legal areas, including civil rights laws, state and federal Department of Revenue (tax) laws, state and federal wage and hour laws, as well as the Workers Compensation Division.  The different entities with jurisdiction use slightly different tests to determine independent contractor status.  For example, the Oregon Bureau of Labor and Industries ("BOLI") uses a "right to control" test, while the federal IRS uses a 20-part test to analyze independent contractor status.  Independent contractors do not receive many of the legal protections that apply to employees.  For example, neither civil rights laws nor wage and hour laws (such as minimum wage and overtime protections) apply to independent contractors.  Nor are independent contractors entitled to unemployment insurance or workers compensation protection.  However, because employers are relieved of many financial obligations and legal requirements such as these when utilizing independent contractors in lieu of employees, the unlawful mischaracterization of individuals who should be employees arises frequently.  Pursuing remedies such as overtime or minimum wage for unlawfully mischaracterized independent contractors is sometimes handled on a class action basis because of the economic realities of litigation and because large groups of individuals are often characterized as independent contractors in certain industries.  The question of independent contractor versus employee status under the law requires a fact-intensive analysis.