THE PHYSICIAN HIRE: EMPLOYEE OR INDEPENDENT CONTRACTOR?

343546_signed_away_2.jpgThe trend for physicians to work for a hospital or hospital system continues. Once a physician finds a job opportunity, one of the first details the physician and the hiring entity may discuss is the nature of the relationship. Will the doctor be an employee or an independent contractor?

Often the hiring entity desires to avoid certain burdens that typically attend employment, such as malpractice liability, employment benefits (e.g. pension, health insurance), and payroll taxes. There are certain reasons the physician may perceive his best interests are served by independent contractor status as well, such as (perceived) tax advantages to having his own corporation or a greater sense of independence in practicing his trade.

The hiring entity and the physician should be mindful, however, that establishing an independent contractor relationship is not automatic from legal standpoint, their desire and their written agreement notwithstanding. In fact, most doctors hired cannot be properly classified as independent contractors. Whether the relationship is “employment” or “independent contractor” must be determined ad hoc according to the particular, details of the relationship.

What determines the issue?

In the Joint Committee on Taxation’s publication Present Law and Background Relating to Worker Classification for Federal Tax Purposes (JCX-26-07), May 7, 2007, 20 factors the IRS analyzes to determine whether sufficient direction and control exist to support an employer-employee relationship are set forth. Those factors are:

1. Instructions: If the person for whom the services are performed has the right to require compliance with instructions, this indicates employee status.

2. Training: Worker training (e.g., by requiring attendance at training sessions)
indicates that the person for whom services are performed wants the services performed in a particular manner (which indicates employee status).

3. Integration: Integration of the worker’s services into the business operations of the person for whom services are performed is an indication of employee status.

4. Services rendered personally: If the services are required to be performed personally, this is an indication that the person for whom services are performed is interested in the methods used to accomplish the work (which indicates employee status).

5. Hiring, supervision, and paying assistants: If the person for whom services are performed hires, supervises or pays assistants, this generally indicates employee status. However, if the worker hires and supervises others under a contract pursuant to which the worker agrees to provide material and labor and is only responsible for the result, this indicates independent contractor status.

6. Continuing relationship: A continuing relationship between the worker and the person for whom the services are performed indicates employee status.

7. Set hours of work: The establishment of set hours for the worker indicates employee status.

8. Full time required: If the worker must devote substantially full time to the business of the person for whom services are performed, this indicates employee status. An independent contractor is free to work when and for whom he or she chooses.

9. Doing work on employer’s premises: If the work is performed on the premises of the person for whom the services are performed, this indicates employee status,
especially if the work could be done elsewhere.

10. Order or sequence test: If a worker must perform services in the order or sequence set by the person for whom services are performed, that shows the worker is not free to follow his or her own pattern of work, and indicates employee status.

11. Oral or written reports: A requirement that the worker submit regular reports indicates employee status.

12. Payment by the hour, week, or month: Payment by the hour, week, or month generally points to employment status; payment by the job or a commission indicates independent contractor status.

13. Payment of business and/or traveling expenses. If the person for whom the services are performed pays expenses, this indicates employee status. An employer, to control expenses, generally retains the right to direct the worker.

14. Furnishing tools and materials: The provision of significant tools and materials to the worker indicates employee status.

15. Significant investment: Investment in facilities used by the worker indicates independent contractor status.

16. Realization of profit or loss: A worker who can realize a profit or suffer a loss as a result of the services (in addition to profit or loss ordinarily realized by employees) is generally an independent contractor.

17. Working for more than one firm at a time: If a worker performs more than de minimis services for multiple firms at the same time, that generally indicates independent contractor status.

18. Making service available to the general public: If a worker makes his or her services available to the public on a regular and consistent basis, that indicates independent contractor status.

19. Right to discharge: The right to discharge a worker is a factor indicating that the worker is an employee.

20. Right to terminate: If a worker has the right to terminate the relationship with the person for whom services are performed at any time he or she wishes without incurring liability, that indicates employee status.

Why does it matter?

It is critical for both the hiring entity and the physician to correctly determine the proper legal classification of the relationship. There are potentially significant adverse consequences for getting it wrong. For example, improper classification of an employee is a very active area of enforcement by IRS and state taxing entities. Liability for unpaid payroll taxes (with interest and penalties) can be meaningful. Another example is disqualification of the employer’s qualified retirement plan (if a perceived independent contractor determined by the IRS to be an employee was excluded from the plan). On the physician’s side of the transaction, many perceived tax benefits of independent contractor status are illusory. Unfortunately for the hiring party and the doctor, a mistaken classification of the doctor’s employment status is something may not be ascertained (by a government entity) for several years, so that the adverse economic consequences are compounded by the passage of time.

Do you know what you are signing?

Our business law firm represents health care providers, including doctors, health care centers, ambulance services, laboratories, physician groups, elder care businesses and pharmacies. We have offices in Atlanta and Augusta, Georgia. Our law firm can be reached at (404) 685-1662 (Atlanta), (706) 722-7886 (Augusta), or info@ksllawfirm.com.

*Disclaimer: Thoughts shared here do not constitute legal advice.

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