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20 ways to differentiate between an independent contractor and an employee

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Foreign Manpower Conference: Independent Contractors & Employees 20 Ways to Tell the Difference Presented By: Kitson Foong LL.B(Hons.), CLP, DCC, PMP, MCJ January 14, 2009 (12PM‐1PM)

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20 Ways to Differentiate Between an Independent Contractor and an Employee

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Page 1: 20 Ways to Differentiate Between an Independent Contractor and an Employee

ForeignManpowerConference:IndependentContractors&Employees

20WaystoTelltheDifference

PresentedBy:

KitsonFoongLL.B(Hons.),CLP,DCC,PMP,MCJ

January14,2009(12PM‐1PM)

Page 2: 20 Ways to Differentiate Between an Independent Contractor and an Employee

ForeignWorkers&theMalaysianEconomy

Page 3: 20 Ways to Differentiate Between an Independent Contractor and an Employee

Conference“TakeAways”

•  Defini5ons–Contracts‘For”and‘Of’Services

•  KnowWhytheDifferenceisImportant

•  KnowHowtoDeterminetheDifference

Page 4: 20 Ways to Differentiate Between an Independent Contractor and an Employee

MyGoalsToday…

Page 5: 20 Ways to Differentiate Between an Independent Contractor and an Employee

a.WhyIt’sImportantto

KnowtheDifference

Page 6: 20 Ways to Differentiate Between an Independent Contractor and an Employee

MyGoalToday…

b.ShowYou20Ques5ons

thatHelpYou

DeterminetheDifference

Page 7: 20 Ways to Differentiate Between an Independent Contractor and an Employee

Difference Between a Contract ‘For’ and ‘Of’ Services

Page 8: 20 Ways to Differentiate Between an Independent Contractor and an Employee

‘FOR’or‘OF’Services

Page 9: 20 Ways to Differentiate Between an Independent Contractor and an Employee

WhyistheDifferenceImportant?

Page 10: 20 Ways to Differentiate Between an Independent Contractor and an Employee
Page 11: 20 Ways to Differentiate Between an Independent Contractor and an Employee

IndependentContractororEmployee:20WaystoTelltheDifference

[DrinkingfromaFirehose…]

Page 12: 20 Ways to Differentiate Between an Independent Contractor and an Employee

A:FinancialControl

Page 13: 20 Ways to Differentiate Between an Independent Contractor and an Employee

B:BehavorialControl

Page 14: 20 Ways to Differentiate Between an Independent Contractor and an Employee

C:RelaZonshipBetweentheParZes

Page 15: 20 Ways to Differentiate Between an Independent Contractor and an Employee

CommonLaw“Control”Test

Page 16: 20 Ways to Differentiate Between an Independent Contractor and an Employee

#1:WhohastheRighttoInstruct:When,Where,andHowtoWork?

Page 17: 20 Ways to Differentiate Between an Independent Contractor and an Employee

#2:DoYouProvideTraining?

Page 18: 20 Ways to Differentiate Between an Independent Contractor and an Employee

#3:WhoCanHire,Supervise&PayforAssistants?

Page 19: 20 Ways to Differentiate Between an Independent Contractor and an Employee

#4:WasthePersonHiredtoOfferServicePersonally?

Page 20: 20 Ways to Differentiate Between an Independent Contractor and an Employee

#5:AretheWorker’sServicesINTEGRATEDintoDailyBusinessOperaZons?

Page 21: 20 Ways to Differentiate Between an Independent Contractor and an Employee

#6:IsaConZnuingRelaZonshipIntended?

Page 22: 20 Ways to Differentiate Between an Independent Contractor and an Employee

#7:WhoSetstheWorkingHours/Time?

Page 23: 20 Ways to Differentiate Between an Independent Contractor and an Employee

#8:AreYouExpecZngFullTimeDevoZon?

Page 24: 20 Ways to Differentiate Between an Independent Contractor and an Employee

#9:Who’sGetstoSetWorkSequences?

Page 25: 20 Ways to Differentiate Between an Independent Contractor and an Employee

#10:Reports‐Frequency&Submissions?

Page 26: 20 Ways to Differentiate Between an Independent Contractor and an Employee

#11:RighttoQuitWithoutIncurringLiability?

Page 27: 20 Ways to Differentiate Between an Independent Contractor and an Employee

#12:HowisWorkPaidFor?

Page 28: 20 Ways to Differentiate Between an Independent Contractor and an Employee

#13:CanExpenseClaimsbeReimbursed?

Page 29: 20 Ways to Differentiate Between an Independent Contractor and an Employee

#14:WhoSuppliestheToolsandMaterials?

Page 30: 20 Ways to Differentiate Between an Independent Contractor and an Employee

#15:DoestheWorkerSignificantlyInvestinEquipment&FaciliZes?

Page 31: 20 Ways to Differentiate Between an Independent Contractor and an Employee

#16:DoestheWorkerEarnaProfitOrSufferaLoss?

Page 32: 20 Ways to Differentiate Between an Independent Contractor and an Employee

#17:IsExclusivityofServiceDemanded?

Page 33: 20 Ways to Differentiate Between an Independent Contractor and an Employee

#18:CantheServicebeMadeAvailabletothePublic?

Page 34: 20 Ways to Differentiate Between an Independent Contractor and an Employee

#19:DoYouControlWhereS/heWorks?

Page 35: 20 Ways to Differentiate Between an Independent Contractor and an Employee

#20:WhoGetstoFire?

Page 36: 20 Ways to Differentiate Between an Independent Contractor and an Employee

ForeignManpowerConference:IndependentContractors&Employees

20WaystoTelltheDifference

Kitson Foong LL.B(Hons.), CLP, DCC, PMP, MCJ

[email protected]


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