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There is No Such Thing as a "1099 Employee"

Posted by Katherine L. Taylor, Attorney | Feb 01, 2014 | 0 Comments

An independent contractor by definition is a person or can be another company even, who is hired to perform a job for another person or business. How, where, and when the job gets done is under the sole control of the contractor, not the hiring company. On the other hand an employee is a person hired by a company to perform a job function within a business and the hiring company controls how, when, and where the job is performed. There is no such thing as a “1099 employee.” The two are totally separate classifications under law and can't be combined into one. Someone who does work for your company is either an independent contractor or an employee and cannot fall under both categories.

One of the major differences between independent contractors and employees are that independent contractors are responsible for paying their own taxes from their earnings. The hiring company is not responsible for withholding state and federal taxes, Social Security or Medicare taxes for a contractor or vendor. Employers are responsible for paying the income of their employees as well as withholding all taxes and offering healthcare benefits under law.

The IRS has a 20 point checklist to help businesses properly classify their workers as either independent contractors or employees. Here are the major points used to classify independent contractors:

  • Who has control? A worker is an employee if the person for whom he works has the right to direct and control him concerning when and where to do the work. The employer need not actually exercise control; it is sufficient that he has the right to do so.
  • Right to fire. An employee can be fired by an employer. An independent contractor cannot be fired so long as he or she produces a result that meets the specifications of the contract. 
  • Training. An employee may be trained to perform services in a particular manner. However, independent contractors ordinarily use their own methods and receive no training from the employer.
  • Set hours of work. Workers for whom you set specific hours of work are more likely to be employees. Independent contractors, on the other hand, usually establish their own work hours.


Misclassifying an employee as an independent contractor can result in serious fines and penalties by the IRS. 1099 refers to the form companies issue to independent contractors for tax purposes. It's very important you aren't issuing a 1099 designation to someone who should be classified as an employee and receive W-2 forms instead, which documents how much money was withheld throughout the year for federal, state, Social Security and Medicare taxes. To help you determine the right classification for your workers, consult the complete IRS checklist. If you're still unsure, it might be best to consult an accountant or a business attorney who specializes in small business and corporate laws. 

About the Author

Katherine L. Taylor, Attorney

Katherine founded Taylor Legal after serving for 10 years as Senior Assistant County Solicitor for Howard County Government, and 7 years as a commercial litigator at Whiteford, Taylor & Preston, a premier law firm in Baltimore, Maryland.

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