With the first quarter of 2015 behind us, many companies are already deeply engaged in social media campaigns. Many of these campaigns include the engagement of professional bloggers or other persons with social media influence to promote corporate brands through social media. These individuals are typically classified as independent contractors, but are they really employees? This article describes the risks and rewards of classifying bloggers (and any other workers) as independent contractors instead of employees, and ways to manage that risk.
Background: What Is an Independent Contractor?
Broadly speaking, a worker may be classified as either an “employee” (an individual to whom statutory wage payment and other legal protections apply) or an independent contractor (to whom such protections generally do not apply). Although the vast majority of the U.S. workforce falls into the former category, independent contractors serve an important function in the economy and offer businesses many upsides over employees. To take advantage of these benefits without risking the downsides, including “misclassification” litigation and other pitfalls, it is important for companies to understand the differences between employees and independent contractors from a legal standpoint.
Typically, a company should engage independent contractors for a discrete period of time to perform a task or series of tasks outside the scope of expertise of the regular, employee-workforce. Unlike employees, contractors should not complete employment applications or W-4 forms, and they should not receive the company’s employee handbook. In addition, contractors should not be shackled by the same restraints that encumber employees: companies should ensure that their independent contractors remain free from direct supervision and control, may negotiate their own rates, retain latitude to perform their assigned task(s) in any manner and on any schedule they choose (so long as their work product is delivered by company-required deadlines), and are permitted to perform work for multiple businesses at any given time. Where applicable, independent contractors also should provide their own tools, transportation, and the like.
Despite these general principles, determining whether a worker is properly classified as a contractor warrants a forum- and fact-specific analysis, as is more fully discussed below.