Employees vs. Independent Contractor’s in Minnesota



  • Employees are under the control of their employer. The employer determines the details of what the employee will do and how the work will be completed within the employers’ regular course of business.


Independent Contractor’s:

  • Are workers whose employers only have the right to control or direct the result of the work, but not what will be done or how the work will be completed.



Degree of Control vs. Independence:

  • The determining factor that distinguishes an employee from an independent contractor is the degree of control and independence, which falls into three categories:


  1. Behavioral:
    • Does the employer direct or control how the work is being done? Behavioral control may occur through training, instruction, or other means.
  2. Financial:
    • Does the employer direct or control the financial and business aspects such as how the worker is paid, whether expenses are reimbursed, or provide supplies or tools?
  3. Relationship Between the Worker and Employer:
    • How is the relationship perceived by the worker and the employer? Is there a written contract or employee-type benefits such as insurance, pension plans, or vacation pay?


  • All the relevant factors must be considered when determining if someone is an employee or independent contractor because some factors may indicate that a worker is an employee, while others may indicate that a worker is an independent contractor.
  • For more information

The following factors below are relevant in determining whether an individual will be considered an employee or an independent contractor:


  • Having a set schedule of when to work
  • Being a full-time worker
  • Training 
  • Integration of the worker’s services into the business operations
  • Requiring oral or written reports of the work done
  • Being paid hourly, weekly, or by month
  • Reimbursing for travel expenses
  • Required to adhere to company’s policies and procedures 
  • Subject to supervision
  • Receives benefits
  • Specification of sequence of services to be performed
  • Continuing relationship between the worker and the person or persons for whom the services are performed
  • Employer has a right to discharge 
  • Worker has a right to terminate  
  • Furnishing of tools and materials

Independent Contractor

  • Paid on the job or by commission
  • Working for more than 1 company at a time
  • Making service available to the general public
  • Significant investment in the work
  • Services provided are not an integral part of the business
  • Opportunity for profit or risk of loss


Consequences of Misclassification:

  • Potential Investigation by the Minnesota Attorney General’s Office:
    • Employers must correctly determine whether their workers are employees or independent contractors not only to ensure that the correct tax forms are filed, but also because independent contractor misclassification is wage theft, and the Minnesota Attorney General’s Office has broad authority to investigate violations and complaints of worker misclassification.
    • For more information.


  • Potential Investigation by the IRS:
    • If an employee is misclassified as an independent contractor and the employer has no reasonable basis for doing so, the employer may be liable for employment taxes and investigated by the IRS.
    • For more information.


Employer Relief:

  • If an employer has a reasonable basis for not treating a worker as an employee, they may qualify for relief from having to pay employment taxes for that worker.
  • For more information.



  • Employees:
    1. Form W-2
      • Generally, income taxes must be withheld, Social Security must be withheld and paid, Medicare taxes, and unemployment taxes on wages must be paid to employees.
      • Form W-2 usually applies, but check here to assess the applicability of other employment tax forms.
      • For more information.


  • Independent Contractor’s:
    1. Form W-9
    2. Form 1099-NEC
      • Generally, no taxes need to be withheld or paid on payments made to independent contractors.
      • For more information.



Still Unsure?:

  • The IRS will help an employer or worker determine their worker status by completing and submitting the Form SS-8, which can be found here.
  • A copy of the completed Form SS-8 and a copy of the IRS’s written determination should both be sent to the Minnesota Department of Revenue.
  • For more information



DIY Employment Law Package

If you need employment law materials specific to Minnesota, check out our DIY Employment Law Package! It covers over 100 necessary employment documents organized and filled in with your business information. While it doesn’t include any time with an attorney, it does include a video of the attorney explaining each document. A great DIY, budget-friendly option!

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