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  1. #21
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    Jun 2006
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    Massachusetts
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    Default Re: Can You Require Independent Contractors to Follow a Dress Code

    Whether someone is an IC or an employee depends on the preponderance of evidence looking at ALL the relevant factors. There is NO single factor that conclusively proves status. Not dress code, not uniforms, not who pays for them.

    You folks are taking a single factor and hanging your hat on it with NO evidence of how any of the other relevant factors are handled.

  2. #22
    Join Date
    Aug 2017
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    9

    Default Re: Can You Require Independent Contractors to Follow a Dress Code

    Yes, you can. But I would also consider reading through here: https://www.irs.gov/businesses/small...ed-or-employee under Common Law Rules....Especially if your attorneys don't normally deal in employment law... It's easy to write a contract but not so easy to go through the analysis as shown on that link...behavioral control is probably going to be the factor in play and under "how to work". This is the best

    Honestly that is the bigger question that you should be asking and what others are trying to offer you as will I ..... Because a contract itself can not override the employee classification (that is the person can't sign away employment rights if they are misclassified)....
    Thank you for this! This really opened my eyes. I hadn't found the Common Law section before.

    As far as the behavioral section: We do not currently provide types of instruction or degrees of instruction, that is all currently provided by the client themselves in the form of tasks (feed the fish, clean the day stall, bring hay to the pasture). We also do not evaluate the work, the client is responsible for letting us know if there was unsatisfactory or incomplete work. We also do not provide any training.
    We do provide a "where & when" because the service we provide is on the client's property & pertains to their scheduling needs. We give the IC a timeframe for arrival, typically within a 1-4 hour window encompassing the specific time the customer requested.
    For example:
    Client A wants Jackson to be taken on a walk around 1pm. We give the IC a window between 12pm-2pm.
    Client B wants Harold turned out between 7am - 10am.
    Have we messed up here?
    Otherwise, the other sections match our current set up.


    Generally, if the employer is supplying uniforms, then IC is not IC. But the one good test may be does the employer require a certificate of insurance for the IC. ICs have to carry their own insurance.
    We have no uniforms and really don't care to implement uniforms, we just want them to dress appropriately for the job they have selected to take on. We have not required a certificate of insurance from our IC's because they are covered under our company's insurance, which is how we were advised to set this up from the beginning, which is also why I'm concerned about safety attire. After seeing one of our contractors working a potentially dangerous job in very unsafe attire, we're reevaluating what our needs actually are. We assumed that IC's who have worked in this industry before would know how to dress for the job they select, but we were wrong. Which is how we arrived here today.

    If you are hiring the Acme Barn Stall Cleaning Co to come in a couple of times a week for a few hours a day to clean your barn stalls and they hand you an invoice when they leave to go to their next client then, yes, there's no problem dictating to the boss of the Acme Barn Stall Cleaning Co how he or his employees dress while on your property.

    Is that what you are doing?
    In this example, I would be Acme Barn Stall Cleaning. We do in person consultations, walk the property, discuss requirements of the job, and also have the client fill out a questionnaire pertaining to specifics of their job to be fulfilled at the time of service. For example, our clients have specified requirements such as "You must give Fluffy her pill between 7pm-8pm with food", or "You must let the 60+ alpacas out of the barn before 9am or they'll try to break down the door and hurt themselves."

    ** If we were to ask the clients how they expect their assigned worker dress (or any recommended attire) in the questionnaire, include that information in the specific job posting (not the IC contract) which an IC would then select to work, would that accomplish my goal since the client is specifically requesting it? At that point it is not Acme Barn Stall Cleaning requesting the attire, which would be acting within an employer-employee relationship, right?

    You can mandate that ANYONE coming on to your facility wear whatever safety equipment/clothing you and/or OSHA feel is needed. Employees, ICs, Customers or People just wandering in off the street.

    I'm sure you have seen construction areas that have signs that say "Hard Hat Area". Same thing.
    The IC's travel to the client's location and work on the client's property/facility. So could the Client technically mandate a particular attire if it were part of our questionnaire? Like "Must wear steel toed boots while on the farm."


    Whether someone is an IC or an employee depends on the preponderance of evidence looking at ALL the relevant factors. There is NO single factor that conclusively proves status. Not dress code, not uniforms, not who pays for them.

    You folks are taking a single factor and hanging your hat on it with NO evidence of how any of the other relevant factors are handled.
    We are looking at one single factor because the rest has been handled by our attorney's office and we have no concerns about the current set up relating to the other factors, only the ideal future changes we wish to make as we grow our business and accumulate more IC's. This is the one single factor we wish to reevaluate for what is currently in place.


    If we need to reclassify these IC's as employees, we can absolutely look into this option. We were simply advised that due to the nature of the business, limited availability of the jobs, and the travel requirements using their own time & vehicles, that "it does not make sense to have actual employees". But if we have to figure this out differently, then we can try to figure it out differently. My interest was peaked when I learned that similar on-demand businesses have their IC's wear logo shirts with specific attire, such as Shipt or Uber. Then again, I don't care about a logo shirt or specific uniform, I just want an open guideline about long pants & close toe shoes in certain situations. The only specific information I can find in reference to IC attire is either specific to the construction industry, or specific to IC's NOT wearing logos or actual uniforms outside the construction industry.

    I'm not going to get any answers from my attorney's office until we have an actual meeting with them in 2 weeks, so I'm trying to find any information I can in the mean time... Because I'm not a lawyer, I've never done this before, and I'm not as knowledgeable on this subject as many others are. I thank you all for your time and attention with this, and truly appreciate all the knowledge you have shared with me.

  3. #23
    Join Date
    Nov 2015
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    Default Re: Can You Require Independent Contractors to Follow a Dress Code

    This sounds like some house cleaner threads that pulled the same IC/employee scam.

    I'm no expert but what you describe in the above post is you being an employer/contractor and you're hiring employees. I also read this as you trying to do an end run around the duties that an employer has to employees.
    "Where do those stairs go?"
    "They go up!"

  4. #24
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    Jun 2006
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    Massachusetts
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    Default Re: Can You Require Independent Contractors to Follow a Dress Code

    kspeer, when I said this: you folks are taking a single factor and hanging your hat on it with NO evidence of how any of the other relevant factors are handled. I was talking to the other responders here, not to you.

  5. #25
    Join Date
    Aug 2017
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    9

    Default Re: Can You Require Independent Contractors to Follow a Dress Code

    Quote Quoting cbg
    View Post
    I was talking to the other responders here, not to you.
    OH! Sorry!

  6. #26
    Join Date
    Feb 2008
    Posts
    1,124

    Default Re: Can You Require Independent Contractors to Follow a Dress Code

    Do your ICs also do the same types of tasks for pay for other people outside of the ones you schedule? If not, are they free to do so?

    The only other thing I see that raises a red flag is that you insure them. Do you mean under just your general liability policy or do you mean Workers Compensation or some other type of insurance? To me, this raises more issues than whether you ask them to dress a specific way.

    ICs vs ees is a very gray area ... no two situations are the same and yours at this point is very gray. The statement it doesn't "make sense to have actual employees" scares me just a bit. It's not about the sense but about going through the 3 categories (behavioral, financial and managerial) to see where they stand. If you want to know for sure, fill out an SS-8 from the IRS: https://www.irs.gov/taxtopics/tc762.html. Honestly in the end it is only their opinion that matters. If nothing else it will show you the questions that the IRS would ask/review.

  7. #27
    Join Date
    Aug 2017
    Posts
    9

    Default Re: Can You Require Independent Contractors to Follow a Dress Code

    Quote Quoting hr for me
    View Post
    Do your ICs also do the same types of tasks for pay for other people outside of the ones you schedule? If not, are they free to do so?
    Some do and some don't, but they are all free to do so.

    The only other thing I see that raises a red flag is that you insure them. Do you mean under just your general liability policy or do you mean Workers Compensation or some other type of insurance? To me, this raises more issues than whether you ask them to dress a specific way.
    Under our general liability.

    ICs vs ees is a very gray area ... no two situations are the same and yours at this point is very gray. The statement it doesn't "make sense to have actual employees" scares me just a bit. It's not about the sense but about going through the 3 categories (behavioral, financial and managerial) to see where they stand. If you want to know for sure, fill out an SS-8 from the IRS: https://www.irs.gov/taxtopics/tc762.html. Honestly in the end it is only their opinion that matters. If nothing else it will show you the questions that the IRS would ask/review.
    This is an excellent idea and we will absolutely look into this! Thank you so much!

  8. #28
    Join Date
    Mar 2013
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    16,962

    Default Re: Can You Require Independent Contractors to Follow a Dress Code

    Quote Quoting cbg
    View Post
    Jack, show me the law that says IC's can't be required to adhere to a dress code.
    Show me where I said that.

    Quote Quoting kspeer
    View Post
    Thank you for this! This really opened my eyes. I hadn't found the Common Law section before.

    As far as the behavioral section: We do not currently provide types of instruction or degrees of instruction, that is all currently provided by the client themselves in the form of tasks (feed the fish, clean the day stall, bring hay to the pasture). We also do not evaluate the work, the client is responsible for letting us know if there was unsatisfactory or incomplete work. We also do not provide any training.
    We do provide a "where & when" because the service we provide is on the client's property & pertains to their scheduling needs. We give the IC a timeframe for arrival, typically within a 1-4 hour window encompassing the specific time the customer requested.
    For example:
    Client A wants Jackson to be taken on a walk around 1pm. We give the IC a window between 12pm-2pm.
    Client B wants Harold turned out between 7am - 10am.
    Have we messed up here?
    Otherwise, the other sections match our current set up.

    We have no uniforms and really don't care to implement uniforms, we just want them to dress appropriately for the job they have selected to take on. We have not required a certificate of insurance from our IC's because they are covered under our company's insurance, which is how we were advised to set this up from the beginning, which is also why I'm concerned about safety attire. After seeing one of our contractors working a potentially dangerous job in very unsafe attire, we're reevaluating what our needs actually are. We assumed that IC's who have worked in this industry before would know how to dress for the job they select, but we were wrong. Which is how we arrived here today.

    In this example, I would be Acme Barn Stall Cleaning. We do in person consultations, walk the property, discuss requirements of the job, and also have the client fill out a questionnaire pertaining to specifics of their job to be fulfilled at the time of service. For example, our clients have specified requirements such as "You must give Fluffy her pill between 7pm-8pm with food", or "You must let the 60+ alpacas out of the barn before 9am or they'll try to break down the door and hurt themselves."

    ** If we were to ask the clients how they expect their assigned worker dress (or any recommended attire) in the questionnaire, include that information in the specific job posting (not the IC contract) which an IC would then select to work, would that accomplish my goal since the client is specifically requesting it? At that point it is not Acme Barn Stall Cleaning requesting the attire, which would be acting within an employer-employee relationship, right?

    The IC's travel to the client's location and work on the client's property/facility. So could the Client technically mandate a particular attire if it were part of our questionnaire? Like "Must wear steel toed boots while on the farm."

    We are looking at one single factor because the rest has been handled by our attorney's office and we have no concerns about the current set up relating to the other factors, only the ideal future changes we wish to make as we grow our business and accumulate more IC's. This is the one single factor we wish to reevaluate for what is currently in place.

    If we need to reclassify these IC's as employees, we can absolutely look into this option. We were simply advised that due to the nature of the business, limited availability of the jobs, and the travel requirements using their own time & vehicles, that "it does not make sense to have actual employees". But if we have to figure this out differently, then we can try to figure it out differently. My interest was peaked when I learned that similar on-demand businesses have their IC's wear logo shirts with specific attire, such as Shipt or Uber. Then again, I don't care about a logo shirt or specific uniform, I just want an open guideline about long pants & close toe shoes in certain situations. The only specific information I can find in reference to IC attire is either specific to the construction industry, or specific to IC's NOT wearing logos or actual uniforms outside the construction industry.

    I'm not going to get any answers from my attorney's office until we have an actual meeting with them in 2 weeks, so I'm trying to find any information I can in the mean time... Because I'm not a lawyer, I've never done this before, and I'm not as knowledgeable on this subject as many others are. I thank you all for your time and attention with this, and truly appreciate all the knowledge you have shared with me.
    It would have been nice to know all this at the beginning of the thread. Opens up a whole new set of issues but with the same question: IC or employee?

    Your company is an employment agency. Can also be known as a temporary employment agency or a staffing agency or recruiting agency. Call it what you like but the result is that you get the workers and send them to your client's locations to work under the direction of your client. You're putting not only your own business at risk but your clients' businesses as well.

    Read the following article to get an idea of the risks you and your clients are taking if you misclassify your workers as independent contractors:

    http://www.mondaq.com/unitedstates/x...To+Undue+Risks

    Interesting that you mention Uber. California and NY have already ruled that Uber drivers are employees, not independent contractors. I suspect that other state's will follow suit if they haven't already.

    As cbg points out, there are many factors involved.

  9. #29
    Join Date
    Aug 2017
    Posts
    9

    Default Re: Can You Require Independent Contractors to Follow a Dress Code

    Quote Quoting adjusterjack
    View Post
    Opens up a whole new set of issues but with the same question: IC or employee?
    As far as we're set up from the lawyers, they are all bona-fide IC's. I do trust that they did it right- Although I'm not a lawyer so I really have no way of knowing in the end without that IRS review, unfortunately. But this is why I paid someone smarter than me with more experience than me to do it!

    Quote Quoting adjusterjack
    View Post
    Your company is an employment agency. Can also be known as a temporary employment agency or a staffing agency or recruiting agency. Call it what you like but the result is that you get the workers and send them to your client's locations to work under the direction of your client. You're putting not only your own business at risk but your clients' businesses as well.
    I'm sorry, I'm confused by this. The clients don't have businesses. I've never thought there could be a correlation between pet-sitting and a staffing agency. Do you know of anywhere I could find more information on staffing agencies that would have reputable information on the topic? My preliminary Google searches only pulled Rover & other companies who offer services via IC's in a similar way to our business, but just who are posting jobs for sitters, not really legal information like I'm trying to locate.
    But staffing agencies never actually "employ" their people either, do they? Isn't that up to the business entity they put the worker with?

    This is a very interesting turn of events for me!

  10. #30
    Join Date
    Feb 2008
    Posts
    1,124

    Default Re: Can You Require Independent Contractors to Follow a Dress Code

    Staffing agencies are generally either the employer of record or a co-employer with the client, but yes, they are often the employer of record and their workers are employees. Sometimes they can have IC/1099'ers, but again it gets back to those classification questions. I would ask your attorneys if they have considered the three factors and go over the SS-8 questions with your attorneys at your next meeting honestly to make sure you understand, because in the end it is you with the liability, not your attorneys.

    That article posted is a good one.

    In the end you are running a business and need to make sure that you are running it correctly and kudos to you for trying to learn more and get it right.

    One other thing to ask is if your IC/ee gets hurt on a job, whose insurance is going to cover it? The clients, your general liab insurance? You might want to check your general liability policy to make sure the ICs would be covered if that is what you are expecting.

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