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Ask Christopher B, Esq. Your Own Question
Christopher B, Esq.
Christopher B, Esq., Attorney
Category: Social Security
Satisfied Customers: 2963
Experience:  associate attorney
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If you pay an elder caregiver is she an independent

Customer Question

If you pay an elder caregiver is she an independent contractor or do we have to pay social security for her?
Submitted: 1 year ago.
Category: Social Security
Expert:  Phillips Esq. replied 1 year ago.

Could you explain a little more?

Is she an employee or an Independent Contractor?

What are the terms of your agreement with the caregiver?

Customer: replied 1 year ago.
We will pay her a certain amount of money. My mother would stay at a relative's house and get three meals a day, go to dr. appointments, etc. The caretaker lives at that house.
Customer: replied 1 year ago.
We are having a meeting with her today to talk about this. What separates an independent contractor from an employee?
Customer: replied 1 year ago.
Are you still there?
Expert:  Phillips Esq. replied 1 year ago.

Yes, I am here. I was responding to other customers in front of you.

Expert:  Phillips Esq. replied 1 year ago.

From what you have described, this caregiver will be considered an employee and not an Independent Contractor because she will not be setting her own hours. She will only work at the direction of someone else. So, Social Security and Medicare taxes must be deducted from her wages.

Customer: replied 1 year ago.
not enough information. She is working totally independently and sets her own hours.
Expert:  Phillips Esq. replied 1 year ago.

I am sorry that you feel that I did not provide enough information. I stand by my response. I will opt out and give another Attorney the opportunity to further assist you.

Customer: replied 1 year ago.
I need to leave in half hour to make the meeting
Expert:  Christopher B, Esq. replied 1 year ago.

New expert here. My name is***** and I will be helping you with your question today. This is for informational purposes only and does not establish an attorney client relationship.

It is really hard to tell with the amount of information given, but it will likely come down to if this person has more than one client or if she has a contract or agreement only with your mother. If this caregiver lives with your mother full time, it is likely that she is an employee. If she goes around to several clients it is more likely she is an independent contractor. You can get a determination from the IRS although this normally takes 6 months. The IRS gives direction below and you will have to weigh these factors to ascertain which she is. Without more info, it is difficult to say.

"Facts that provide evidence of the degree of control and independence fall into three categories:

Behavioral: Does the company control or have the right to control what the worker does and how the worker does his or her job?

Financial: Are the business aspects of the worker’s job controlled by the payer? (these include things like how worker is paid, whether expenses are reimbursed, who provides tools/supplies, etc.)

Type of Relationship: Are there written contracts or employee type benefits (i.e. pension plan, insurance, vacation pay, etc.)? Will the relationship continue and is the work performed a key aspect of the business?

Businesses must weigh all these factors when determining whether a worker is an employee or independent contractor. Some factors may indicate that the worker is an employee, while other factors indicate that the worker is an independent contractor. There is no “magic” or set number of factors that “makes” the worker an employee or an independent contractor, and no one factor stands alone in making this determination. Also, factors which are relevant in one situation may not be relevant in another.

The keys are to look at the entire relationship, consider the degree or extent of the right to direct and control, and finally, to document each of the factors used in coming up with the determination."

See link from IRS: https://www.irs.gov/Businesses/Small-Businesses-&-Self-Employed/Independent-Contractor-Self-Employed-or-Employee

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