We want to hire an administrative assistant. Can we classify this person as an independent contractor during a 90-day try-out period and then, if they work out, hire them as a full-time employee at the end of the 90 days?
May 17, 2017
The short answer is no.
It’s highly unlikely that an administrative assistant would meet the criteria for classification as an independent contractor. The IRS and the U.S. Department of Labor, along with state agencies, have specific criteria for determining who is an employee and who is an independent contractor. These criteria focus on the overall relationship workers have with their employer, with particular attention to who controls when, where, and how the job gets done, as well as who has the opportunity for financial profit or loss. Administrative assistants typically do not have that level of control over their work, so they’ll almost always be classified as employees.
We understand that you’d like to hire the individual on a trial basis, with the possibility of continued employment. You can do this by offering them temporary employment. During this temporary period, make sure that you provide the employee with clear expectations for the position and success in the role. If you elect to hire them after this trial period and move them to a full-time status, you should reset the expectations, update their status in writing with them and in your payroll system. Keep in mind, temporary employees that are not hired for a seasonal need, may become eligible for benefits during this time if they consistently work over 30 hours in a workweek. Check with your benefit plan document and broker as to when this occurs according to your company’s plan.
Hiring individuals as contractors to avoid paying benefits and overtime is never advisable.