Can a worker dictate whether they are treated as an “employee” or “independent contractor”?

No.  This is not a choice that is made by either the worker or the employer.

Whether a worker is considered an “employee” or an “independent contractor” (often and imprecisely referred to as a “1099 employee”) is dictated by numerous factors including the circumstances of the work.  You can find some of the factors that determine employee or independent contractor status in this post and you can find guidance on avoiding what I call the “independent contractor trap” here.

This question has come up in my law practice when I hear that a person has chosen to be 1099’d rather then w-2’d, as if the person was making making an ordering decision at McDonald’s and choosing the #3 Extra Value Meal instead of the #4 Extra Value Meal.  Like with many things in the law, it isn’t that easy, even for people who spend a lot of time working with the issue.

Posted by Shawn Roberts

On this blog, I write about and try to answer practical Oklahoma legal questions. My focus and most experience is in estate planning and business issues including Oklahoma non-compete law. I make a living as an attorney in the law firm I founded, Shawn J. Roberts, P.C. in Oklahoma City. I live in Edmond with my wife Amy and my two children, Sam (19) and David (11). We live precisely in the path of where the "wind comes sweeping down the plains."