Section 8: DEFINITION OF EMPLOYEES


(a) General

Everyone who performs services subject to the will and control of an employer both as to what shall be done and how it shall be done is an employee. It does not matter that the employer permits the employee considerable discretion and freedom of action if the employer has legal right to control both the method and the result of the services.

Though not always applicable, some of the characteristics of the term "employee" are that the employer has the right to discharge and furnishes the person with tools, a place to work, provides direction, supervision and determines the work hours.

In general those in business for themselves in a non-corporate form, are not employees (by way of example and not by limitation, physicians, lawyers, dentists, veterinarians, construction contractors, public stenographers, and others who follow an independent trade, business, or profession in which they offer their services to the public as a sole proprietor or partner in a partnership.)

If the relationship of employer and employee exists, the description of the relationship by the parties as anything other than employer and employee is immaterial. It does not matter that the employee is designated as a partner, agent, or independent contractor, or does it matter how they are paid, what they are called or whether the individual is employed full or part-time.

No distinction is made between classes of employees. Superintendents, managers, and other supervisory personnel are employees. Generally, an officer of a corporation is an employee; but a director in that capacity, is not. An officer who performs no services, or only minor ones, and who neither receives nor is entitled to remuneration is not considered an employee.

Whether the relationship of employer and employee exists under the usual common law rules and the IRS Regulations will be determined in doubtful cases by examination of the facts of each case.

(b) Household Employees.

Section 3401(a) of the Internal Revenue Code defines wages as "… all remuneration (other than fees paid to a public official) for services performed by an employee for his employer, including the cash value of all remuneration (including benefits) paid in any medium other than cash; except that such term shall not include remuneration paid for … domestic service in a private home…". The IRS regulations state that remuneration paid for services of a household nature performed by an employee in or about a private home of the person by whom he is employed is excepted form wages and hence is not subject to withholding. A private home is a fixed place of abode of an individual or family. In general, services of a household nature include services performed by cooks, waiters, butlers, housekeepers, maids, valets, babysitters, janitors, caretakers, gardeners, and chauffeurs.

While Federal and State withholding is not required for domestic services in a private home; an agreement between the employer and employee can be made to have the employer withhold State tax. The employer should have the employee complete federal form W-4 and withhold accordingly or withhold an amount agreed upon by the employee.

(c) Employers of Farmworkers

In general you are an employer of farmworkers if your employees: raise or harvest agricultural or horticultural products on a farm; care for your farm and equipment when most of the care is done on the farm; handle, process or package any agricultural or horticultural commodity if you produced over half of the commodity; or do housework in your private home if it is on the farm that is operated for profit.

(d) Crew Leaders

You are also an employer of farmworkers if you are a crew leader. A crew leader is a person who furnishes and pays (either on his or her own behalf or on behalf of the farm operator) workers to do farmwork for the farm operator. If there is no written agreement between you and the farm operator stating that you are his or her employee and if you pay the workers (either for yourself or for the farm operator), then you are a crew leader.

Employee's Social Security Number