Employee vs. contractor: What are the legal distinctions?

While the basic structure and framework of a consulting agreement and an independent contractor agreement are very similar, the primary difference is in what services the consultant provides. In a consulting agreement, the consultant is providing their advice for a fee. The guidance will be in the field of their expertise and, usually, includes evaluating an aspect of your business and making suggestions regarding what to do next. An independent contractor, on the other hand, will actually perform the work. The difference is not always a bright line and will vary depending on the circumstances. In some cases, a service provider will evaluate, recommend, and then perform. In that case, they are acting as a consultant first and then an independent contractor. It is also important to properly consider the differences between an independent contractor and an employee.

Hello! My name is Damien Bosco. My law office is in Long Island City, across from Manhattan. Some key provisions of an independent contract agreement include the scope of work and the payment terms. An important provision discusses intellectual property rights. Define who owns any work product, intellectual property, or inventions created during the contract. Consider whether you want to retain rights to your pre-existing work or methodologies. There are other provisions also such as Non-Compete and Non-Solicitation Clauses. You may want an attorney to review your full Agreement to suggest additions or edits. Feel free to reach out with any more questions!

In general, contract terms can make someone an employee, but cannot ensure independent contractor status. Essentially, the contract can set out IC terms, but if those terms are not followed in practice, the contract itself can't fix that. Under California AB, there is an exemption for dentists from the strict "ABC" test, but dentists will still need to meet a number of other requirements that are often, in practice, difficult to meet. For example, they would have to be "open to the public" and actually performing the same of similar services for others - so working for a single dental office typically will not pass the test!

Yes, generally, an independent contractor agreement can be modified after it has been signed. However, any changes must be made formally and typically require the consent of both parties involved. Here’s how to properly modify an independent contractor agreement...although (caution here) I would contact a business/employment law attorney such as myself: 1. Draft a Written Amendment Create an Amendment: Prepare a written amendment or addendum to the original agreement. This document should clearly specify the changes being made and reference the original agreement. Include Details: Clearly outline what parts of the original agreement are being modified and include any new terms or conditions. 2. Get Mutual Agreement Both Parties’ Consent: Both the contractor and the client must agree to the changes. This means both parties should review and approve the amendment. Signature: Both parties should sign the amendment to make it legally binding. It’s a good idea to have each party retain a copy of the signed amendment. 3. Review and Update Documentation Original Agreement: Ensure that the original agreement and any amendments are kept together and clearly documented. Consistency: Make sure that any changes made are consistent with the overall terms of the agreement and applicable laws. Consult an Attorney: Depending on the complexity of the changes, it may be wise to consult with a legal professional to ensure that the modifications are legally sound and properly documented.

This is a complicated question and you should get help drafting a solid contractor on the front end to help safeguard your business against numerous liabilities. Examples include contractor negligence, subpar work, IP ownership, confidentiality and many more. Let me know if you have any other questions!