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Patrick, Esq.
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Category: California Employment Law
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I hired a Physician Assistant as an independent contractor

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I hired a Physician Assistant as an independent contractor at my Urgent Care Medical practice. My attorney has advised me that a Physician Assistant does not qualify to work as an independent contractor but would qualify to be an exempt employee. Is this correct or is there a way for the PA to stay employed as an independent contractor?

The PA is insisting on staying an independent contractor. He currently works without a direct supervisor and he schedules his own hours.
Good evening and thank you for entrusting me to answer your question. I will do everything I can to assist you.

First, to clarify some misconceptions, there is no law which blanketly excludes certain lines of work from contractor status. Furthermore, an individual's desire to be classified as an indepedent contractor does not make that classification lawful.

The sole relevant concern in determining whether a worker should be classified as an employee or contractor is the extent of control the employer exercises over their work, with of course the greater the degree of control the more likely the worker must be classified as an employee. Specific factors that are typically examined include the following:

1. Whether the person performing services is engaged in an occupation or business distinct from that of the principal;
2. Whether or not the work is a part of the regular business of the principal or alleged employer;
3. Whether the principal or the worker supplies the instrumentalities, tools, and the place for the person doing the work;
4. The alleged employee’s investment in the equipment or materials required by his or her task or his or her employment of helpers;
5. Whether the service rendered requires a special skill;
6. The kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the principal or by a specialist without supervision;
7. The alleged employee’s opportunity for profit or loss depending on his or her managerial skill;
8. The length of time for which the services are to be performed;
9. The degree of permanence of the working relationship;
10. The method of payment, whether by time or by the job; and
11. Whether or not the parties believe they are creating an employer-employee relationship may have some bearing on the question, but is not determinative since this is a question of law based on objective tests.

Although there are no hard defined rules with regard to who may be classified as a contract, I think it is unlikely that a physician assistant hired to work in person at a particular urgent care facility, even while setting their own hours, would qualify for independent contractor status. By definition, their job is to act in a supporting role to the physicians, which means they are significantly restricted in their work and must accept direction from others. Such position would therefore most likely demand employee classification, regardless of what the PA insisted on.

Misclassification as a contractor can result in rather severe sanctions being imposed against the employer, including penalty assessments, liability for overtime, unpaid hours, failure to carry workers compensation insurance, and more. If in doubt--and this is a situation in which contractor status is certainly doubtful--it is much better to err on the side of caution.

I realize that this is not exactly what you were hoping to hear, but I do trust that you will appreciate the candor of my answer to your question. Please do not hesitate to let me know if you have any questions or concerns regarding the above and I will be more than happy to assist you further.

If you do not require any further assistance, please be so kind as to provide a positive rating of my service so that I may receive credit for assisting you. Very best wishes to you and thank you so much for coming to Just Answer.
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