Building Chicago - 2017 - 21
reading of "independent contractors"
than the IRS. As a result, individuals
who are considered independent
contractors for tax purposes may
be considered to be employees for
immigration purposes, which would
require the completion of a Form I-9.
The term "independent contractor"
includes individuals or entities that
carry on independent business,
contract to do a piece of work
according to their own means and
methods, and are subject to control
only relating to results of a project.
Factors to be considered in whether
the employer exercises enough
control over the contractor to tip the
scales toward an employer-employee
relationship include, but are not limited
to, whether the contractor:
1. supplies the tools or materials;
2. makes services available to the
3. works for a number of clients at the
4. has an opportunity for profit or loss
as a result of the labor or services
5. invests in the facilities for work;
6. directs the order or sequence in
which the work is to be done and
determines the hours during which
the work is to be done.
However, even when a
valid independent contractor
relationship exists, an employer
cannot begin or continue using a
contractor's services when it has
knowledge that the contractor is
using unauthorized workers.
Another exception to the
independent contractor rule is that
prime contractors are required to
ensure that their subcontractors use
1. the prime contract includes the
Federal Acquisition Regulation
(FAR) E-Verify clause;
2. the subcontract is for commercial
or noncommercial services or
3. the subcontract has a value of more
than $3,000; and
4. the subcontract includes work
performed in the United States.
In general, subcontractors that do
not provide any services and only
provide supplies are not subject to the
E-Verify federal contractor rule.
Prime contractors may be
subject to fines and penalties if
they knowingly continue to work
with a subcontractor that is in
violation of the E-Verify requirement.
While prime contractors are not
responsible for verifying their
subcontractors' individual employees,
they must ensure that all covered
subcontracts at every tier incorporate
FAR clause 52.222-54, Employment
In light of this new frontier in
immigration enforcement, contractors
must be diligent in their I-9 compliance
efforts. If you have not recently
performed a self-audit of your Forms
I-9, doing so would be wise. Making
every good-faith effort possible to
ensure your company is in compliance
with I-9 rules can be a company-saving
defense if ICE comes knocking.
McShane Construction is a proud
member of the Builders Association
A Publication of the Builders Association
19/09/17 2:13 AM
McShane Construction has earned
a national reputation of delivering
best-in-class projects that meet
the schedules and cost parameters
of our clients.