Condo and homeowner associations need vendors to perform a variety of services. Before your Board hires someone to handle community projects, it’s important to understand the difference between employee and independent contractor. Determining the status of the worker is essential for income tax withholdings, injuries on the job and liability issues. Assuming the wrong status can put your association at severe financial risk.
The Internal Revenue Service says that a vendor is considered an employee of the community if the HOA can control what will be done and how it will be done. Conversely, the HOA directs the result of the work, but not the method of accomplishing a task for the IRS to consider a worker as an independent contractor. For example, when you direct a vendor to paint a wall, but you don’t tell the vendor how to do it or supervise the work, this vendor would be considered an independent contractor.
Here’s the IRS 20 point independent contractor checklist. The IRS uses these questions to determine if a worker is an independent contractor or employee. The answer of yes to any one of these questions (except #16) may mean the worker is an employee. When in doubt, talk to your CPA and attorney to ensure that your HOA is protected.
1. Is worker required to comply with instructions about when, where and how work is done?
2. Is worker provided training that would enable him/her to perform a job in a particular method or manner?
3. Are services provided by the worker an integral part of the business’ operations?
4. Must services be rendered personally?
5. Does business hire, supervise, or pay assistants to help the worker on the job?
6. Is there a continuing relationship between the worker and the person for whom the services are performed?
7. Does recipient of the services set the work schedule?
8. Is worker required to devote his/her full time to the person he/she performs services for?
9. Is work performed at the place of business of the company or at specific places set by the company?
10. Does recipient of the services direct the sequence in which the work must be done?
11. Are regular oral or written reports required to be submitted by the worker?
12. Is the method of payment hourly, weekly, monthly (as opposed to commission or by the job?)
13. Are business and/or traveling expenses reimbursed?
14. Does the company furnish tools and materials used by the worker?
15. Has worker failed to invest in equipment or facilities used to provide the services?
16. Does arrangement put the person in a position or realizing either a profit or loss on the work?
17. Does worker perform services exclusively for the company rather than working for a number of companies at the same time?
18. Does worker in fact make his/her services regularly available to the general public?
19. Is worker subject to dismissal for reasons other than non-performance of the contract specifications?
20. Can worker terminate his/her relationship without incurring a liability for failure to complete the job?