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article originally appeared in the July 2018 edition of Mobility Magazine.
For workers who seek more
autonomy, more flexibility, or a second income, the idea of a freelance job, or
“gig,” may sound like a good option. For employers who can’t provide full-time
employment and benefits or who need temporary additional services, hiring
freelance and gig workers may also sound like a good option. But U.S. employers
must still remember to comply with immigration and antidiscrimination laws when
dealing with such workers, otherwise known as independent contractors.
Here are some frequently asked
questions and tips for immigration compliance when dealing with an independent
contractor workforce, especially in light of even more scrutiny under the Buy
American and Hire American (BAHA) executive order.
According to a May
2016 article from the Bureau of Labor Statistics, there is no official
definition of a gig worker, but generally the term refers to an independent
contractor who is hired temporarily for a single project or task.
Gig workers are more common in
certain industries, such as in media and communications, where interpreters and
translators may be hired to help expatriated employees learn a new language and
assimilate into their new country. Gig workers are also popular in the computer
and information technology industry, in which someone might be hired for a
one-time service, such as to manage a database project, build a website, or
Other industries frequently
using gig workers include transportation and material moving; construction and
extraction occupations such as a carpenter or painter; or the arts and design
industry, in which musicians or graphic designers take on gigs.
A freelancer is similar to a
gig worker. According to an October
2015 article from the Bureau of Labor Statistics, a freelancer is an
independent contractor who works gig to gig or project to project.
The definition under U.S.
immigration law is similar to the definition used by the Internal Revenue
Service. Under immigration regulations:
contractor includes individuals or entities who carry on independent business,
contract to do a piece of work according to their own means and methods, and
are subject to control only as to results. Whether an individual or entity is
an independent contractor—regardless of what the individual or entity calls
itself—will be determined on a case-by-case basis. Factors to be considered in
that determination include, but are not limited to, whether the individual or
entity: supplies the tools or materials; makes services available to the
general public; works for a number of clients at the same time; has an
opportunity for profit or loss as a result of labor or services provided;
invests in the facilities for work; directs the order or sequence in which the
work is to be done; and determines the hours during which the work is to be
done.” See 8 CFR Section 274a.1(j).
In addition to U.S. federal
statute and regulations, employers should look to federal case law as well as
state statutes and regulations and state case law.
The California Supreme Court in
Operations West v. Superior Court issued a decision on 30 April 2018
related to whether someone is an employee or independent contractor. The
California Supreme Court adopted the “ABC test” and stated:
“Under this [ABC]
test, a worker is properly considered an independent contractor to whom a wage
order does not apply only if the hiring entity establishes: (a) that the worker
is free from the control and direction of the hirer in connection with the
performance of the work, both under the contract for the performance of such
work and in fact; (b) that the worker performs work that is outside the usual
course of the hiring entity’s business; and (c) that the worker is customarily
engaged in independently established trade, occupation, or business of the same
nature as the work performed for the hiring entity.”
For example, if an IT
professional works independently from an energy company, the IT services
provided are not customarily provided by the energy company, and the IT
professional customarily works independently as an IT worker, then the IT
professional may be an independent contractor under the ABC test.
Read the rest
of this article in the July 2018 edition of Mobility Magazine.