PROCEDURE TO ENGAGE AN INDEPENDENT CONTRACTOR
These steps should be taken at the time of negotiation and prior to any commitment to a Contractor:
- Review whether payment as Independent Contractor is the appropriate mechanism or whether person should be hired as an employee (see Definitions and Classification sections below). Contact Sponsored Programs for guidance.
- Submit the following forms and information to Sponsored Programs Office:
The Principle Investigator (party engaging contractor):
- Independent Contractor Services Form , accompanied by:
A statement of work or list of deliverables
Worksheet “Classifying Workers as Independent Contractors or Employees??”
- a detailed description of services to be provided
- statement detailing the selection process employed to choose the most qualified consultan
- a justification for reasonableness of price
The Independent Contractor must supply us with:
- W-9 form
- Contractor’s Vita and confirmation of Liability Insurance
- If Contractor is also a SUNY or other NYS agency employee, the Contractor must complete the SUNY Addendum Form
Sponsored Programs will:
- Send a purchase order and a Working Relationship letter to contractor to confirm acceptance of engagement, working relationship and citizenship
- Prepare a formal contract for an engagement of $10,000 or more
If the Contractor is a foreign citizen:
- A W-8BEN form will be required in place of the W-9
- A W-7 form is required if contractor does not have a U.S. Taxpayer Identification number
- A copy of Visa is required
Independent Contractor: An individual who, under agreement, performs a service and who is subject to the controls of the other only in regard to the result achieved.
- Is not controlled in regards to the manner or means by which their services are performed.
- Services provided are typically task oriented, specific in nature, short in duration, or sought based on expertise.
Compensation is usually according to an agreed upon amount or rate, for a given task.
Employee: Generally speaking, an employee is subject to the control of the employer as to what work must be done and how the work must be done. It is not necessary that the employer actually direct or control the manner in which the services are performed; it is enough that the employer has the right to do so. Services performed are in the course of the general business of the employer, typically performed on-site for a long or indefinite period of time. Compensation is usually made on a time or piece-work basis.
Efforts should be taken to properly classify when reviewing application budgets, when hiring an employee, or when engaging an independent contractor. In general, an independent contractor performs work subject to the control and direction of the hiring organization only as to the RESULT of the work, and not as to the MEANS of perforamnce.
Classifying a worker as an independent contractor rather than as an employee may appear to result in financial savings and less paperwork. However, if the employee is misclassified as an independent contractor, these perceived advantages are offset by the potential penalties that could be assessed by the Internal Revenue Service (IRS) or New York State Department of Labor, by potential Workers' Compensation or unemployment claims, and by liability or malpractice suits.
The RF is legally obligated to properly classify workers even if a sponsor provides funds for independent contractors in an award.
The worksheet Classifying Workers as Independent Contractors or Employees was developed from IRS guidance Twenty Factors of the "Common Law Test" to assist in the classification process. If there are more than one or two “Yes” answers to these questions, the individual to be engaged most likely would be classified an employee.
Approval for Engagement of Services
Requests for approval for Independent Contractors must be made prior to engaging the service of any individual. The process employed in identifying the selected contractor should be documented, so requests submitted should contain a description of such process as well as a justification of reasonable price to be paid.
- For compensation of services over $10,000, the Sponsored Programs Office will work with you to write a Scope of Work, which will be incorporated into a formal contract agreement. Two to three weeks are generally required to establish and obtain a fully executed contract, so requests for contractor services of $10,000 or more should be submitted at least 15 business days prior to the date that the services are needed.
- For compensation of services over $20,000, three quotes should be obtained. In some instances, a single (sole) source procurement may be justified, despite the fact that competition exists, because of limiting circumstances, e.g., experience or service of the contractor. Determination of qualification as a sole source cannot be made until documentation is submitted and reviewed by Sponsored Programs. A formal contract with a detailed Scope of Work will be completed
In all cases, engagement of the contractor is not authorized until all required approvals from Sponsored Programs offices are obtained.
SUNY and other NYS employees are permitted to be compensated as an independent contractor ONLY if ALL of the following criteria are met:
- The proposed contractor or lecturer is not a member of the Project Director’s own department.
- The work to be performed will be in addition to the employee’s normal obligation.
- Approval by the employee’s Department Chair and Dean, or Vice President is also required.
A SUNY employee must fill out and submit a SUNY Addendum Form and obtain the supervisor’s signature to indicate that these services will not interfere with their current State responsibilities.
Research Foundation employees are not eligible to perform services as an independent contractor. Work performed outside the normal obligation may qualify as extra service.
Payment for Services
In accordance with applicable federal regulations, payment for services should not be made until service has been completed. Upon completion of services, an invoice should be submitted by the Contractor.
Requests to reimburse contractors for related expenses, not accounted for in the established fee or rate, should be made in accordance with associated RF policies and procedures.
Requests to reimburse contractors for related travel expenses, not accounted for in the established fee or rate, shall be named in advance in the contract or Independent Contractor Services Form, and require receipts and the appropriate Research Foundation requisition or travel form. Travel reimbursement payment without receipts is allowable if previously agreed upon, but is included in the consultant payment as taxable income.
When using per diem allowances, rates from the U.S. General Services Administration must be used for meals and lodging http://www.gsa.gov/portal/category/21287.
Current IRS rates must be used for mileage. Current mileage rates are 55.5 cents per mile.
Independent Contractor Services Form
Classifying Workers as Independent Contractors or Employees