Freelance Law and Legal Definition
Freelance refers to a type of job where the worker is self-employed. A freelance worker works for themselves and bids for temporary jobs and projects with one or more employers. Other terms used are independent contractor and consultant.
Characteristics of a freelance worker include:
- expertise or a skill in high demand;
- a proven record of success and several years of experience;
- a self-starter who enjoys working independently;
- a self-marketer, who enjoys promoting and selling his or her services, and who has a strong marketing vision and strategy;
- ability to wear multiple hats, including handling clerical, billing, and accounting procedures;
- able to handle high risk - including the lack of job security, no company provided benefits, and no steady paycheck;
- a strong network of personal and professional contacts;
- excellent written and oral communications skills;
- creative, innovative problem-solver.
Free-Lance Employment/Independent Contractors
Free-lance employees, also known as independent contractors, are individuals who work on their own, without a long-term contractual commitment to any one employer. A free-lance employee usually performs services or completes work assignments under short-term contracts with several employers, or clients, who have the right to control only the final result of the individual's work, rather than the specific means used to get the work done. Examples of positions held by independent contractors range from doctors and computer programmers to maids and farm workers. Free-lance employment can offer a number of advantages to individuals, including flexible work arrangements, independence, variety, and some tax deductions. It can also hold some pitfalls, however, such as assuming risk in business dealings, paying self-employment taxes, and taking personal responsibility for health insurance, disability, and retirement coverage.
Specifically, individuals who are classified as independent contractors can deduct work-related expenses for tax purposes. In contrast, the first 2 percent of expenses are not deductible for those classified as employees. In addition, independent contractors often qualify for tax deductions for using part of their home as an office and for salaries paid to other people, while employees usually do not. Independent contractors also have the benefit of sheltering 15 percent of their annual income, or up to $30,000, for retirement, while employees are limited to $15,000 annually. Finally, independent contractors must pay the full amount of Social Security and Medicare taxes and make quarterly estimated tax payments to the federal government. Employers must withhold taxes for their employees and pay half of their Social Security and Medicare taxes.
Free-lance employment boomed in the United States during the 1980s, as many companies sought to reduce their payroll costs in order to remain competitive. Instead of hiring new employees and paying an additional 30 percent or more in payroll taxes and benefits, many companies chose to make "work-for-hire" arrangements with independent contractors (ICs). Businesses, and especially small businesses, can gain several advantages from such arrangements. For example, employers are not responsible for paying taxes for free-lance employees, and they avoid the high costs of providing health insurance, paid vacation and sick leave, and other benefits often granted to regular, full-time employees. In addition, employers that use independent contractors relieve themselves of the risk of costly litigation over hiring, promotion, firing, and other employment practices. These employers simply file Form 1099 with the government to report the total compensation paid to each independent contractor for the year.
There are disadvantages to using independent contractors instead of hiring a staff as well. The loyalty of a freelance worker is not likely to be as great as that of an employee who is a part of the organization. The knowledge that an independent contractor gains about how a company likes things done is also in greater jeopardy than would be the case with an employee. Thus the investment in working with somebody is more easily lost with an independent contractor. However, small businesses often lack the financial security to make the longer-term commitment that taking on an employee requires. Hiring free-lancers is, consequently, an attractive option when help is needed.
FREE-LANCE TREND CAUSES CONTROVERSY
The boom in free-lance employment led to increased scrutiny by the U.S. Internal Revenue Service (IRS) in the early 1990s. Section 1706 of the Internal Revenue Code provides a 20-part test to determine whether workers are employees or independent contractors. The IRS began using this test to reclassify many independent contractors—particularly those engaged in high-paying professions—as employees in order to eliminate tax deductions and increase tax revenues.
The IRS has made reclassification of independent contractors a priority, since fraudulent IC arrangements are estimated to cost the government between $6 and $20 billion per year in tax revenue. The IRS would also argue that they are attempting to protect individuals from unfair treatment by employers—such as being fired and then rehired as an independent contractor without benefits—but few of the reclassifications have involved exploited low-wage laborers, because they generate minimal tax revenues.
Although the controversy surrounding free-lance employment has received increased attention in recent years, it is not new. As early as the 1960s, the IRS started looking more closely at household employees—such as maids, nannies, and gardeners—who often received income "under the table" and thus did not pay taxes. The main cause of dissention over current application of the law is that it often tends to penalize individuals who wish to be classified as independent contractors and take advantage of tax breaks (as well as the small businesses that depend on them), while it often fails to protect individuals who should be classified as employees and be eligible for benefits. For example, the IRS would be likely to review the case of a highly paid engineer who markets her services to several companies as an independent contractor and deducts various expenses of doing business. However, the IRS would be unlikely to review the case of a migrant farm worker who is employed by a large producer but, as an independent contractor, makes less than minimum wage and receives no disability or old-age benefits.
ELEMENTS OF THE IRS TEST
The IRS applies a 20-part test in order to determine whether a certain worker should be classified as an employee or an independent contractor. The main issue underpinning the test is who sets the work rules: employees must follow rules set by their bosses, while independent contractors set their own rules. The hours during which a job is performed is one determination of work rules. For example, if the employer dictates an individual's work hours or pays an individual by the hour rather than by the job, that individual is likely to be considered an employee rather than an independent contractor. Likewise, if the employer requires that an individual work full-time or not be employed by another company simultaneously, that individual would appear to be an employee. On the other hand, an individual who sets her own hours, receives payment by the job, and divides her time between work for several different employers would probably be classified as an independent contractor.
Other criteria involve who provides the tools and materials needed to complete the work. For example, an individual who works at an employer's facility and uses the employer's equipment would be considered an employee, while one who works at a separate location and provides his own equipment would be classified as an independent contractor. Another element of the IRS test involves termination of the work relationship. Employees can usually quit their jobs at will, and can also be fired by their employers. However, a free-lance employee would have a contractual obligation to complete a specific amount of work for an employer, and neither party could break the agreement without cause. Finally, an independent contractor usually pays his own expenses of doing business and takes the risk of not receiving payment when work is not completed in accordance with a contract, while an employee is usually reimbursed for business-related expenses by the employer and receives a paycheck whether his work is completed or not.
FREE-LANCE EMPLOYMENT AND SMALL BUSINESSES
The rules governing independent contractors affect small businesses in two significant ways. First, many entrepreneurs are themselves free-lance employees, and they must understand and adhere to the IRS guidelines in offering services to clients. Otherwise, they risk being reclassified as an employee of their client in an IRS audit of the same. An entrepreneur who is reclassified as an employee of a major client loses a variety of tax breaks and other advantages of self-employment.
In order to be considered independent contractors, entrepreneurs must establish that they are in business for themselves for the purpose of making a profit. They might demonstrate that their enterprise is a business—rather than a hobby or the work of an employee—by registering a business name, obtaining an occupational permit or license, establishing an office, soliciting clients, and printing stationery and business cards. Even if the majority of work will be performed for one client, entrepreneurs should make clear their intention of soliciting work from other clients.
Next, the entrepreneur should subject his or her business activities to the IRS 20-step test in order to avoid the appearance of being an employee. For example, the entrepreneur should be certain that the client does not set his or her hours, determine the location where work is performed, pay withholding taxes on his or her income, or provide needed equipment, tools, supplies, or transportation. Instead, the entrepreneur should sign a contract specifying an amount of work that will be completed by a certain deadline. The contract should include a specific disclaimer stating that this work will be performed as an independent contractor. The entrepreneur should also be certain to obtain a 1099 form (a statement of miscellaneous income) from the client for tax purposes, rather than a W-2 form (a statement of income from employment).
The rules governing independent contractors affect small businesses in another significant way. Many small businesses lack the resources to hire permanent employees to provide support for short-term projects or to provide expertise in highly technical fields, so instead they enlist the services of independent contractors. In these cases, it is to the benefit of the small business owner as well as the independent contractor to spell out the details of the work arrangement in a contract. The small business owner should also choose free-lance employees carefully to be sure that they present themselves as being in business to make a profit.
Fishman, Stephen. Working for Yourself. Nolo Press, 2004.
Fishman, Stephen. Working With Independent Contractors. Fifth Edition. Nolo Press, July 2005.
Lankford, Kimberly. "Freelancers, Meet Schedule C." Kiplinger's Starting Out Web Column. 27 January 2005.
Mullings, Monique. "Freelancers Can be Enhancers." European Intelligence Wire. 19 September 2005.
Russman, Joel, and Cindy Gomerdinger. "Pros and Cons of Contractors vs. Employees." Denver Business Journal. 17 March 2000.
U. S. Internal Revenue Service. "Independent Contractor vs. Employee." Available from http://www.irs.gov/businesses/small/article/0,id=99921,00.html Retrieved on 10 March 2006.
Hillstrom, Northern Lights
updated by Magee, ECDI