How is misclassification determined in Texas?
This is a complicated distinction virtually anywhere in the world. For example, in new-south-wales I have workers who are contractors for income tax and GST (value added tax) but employees for superannuation and worker’s compensation. Similar nuances apply in texas - a worker might be an employee for some purposes and a contractor for others.
For Texas law only (Federal law and inter-state employees are different) the law is that a worker is presumed to be an employee unless the employer demonstrates that they are an independent contractor. To be an independent contractor:
The company generally seeks out the worker
The company and worker negotiate the terms of the engagement
The company does not train the independent contractor
Payment is for a finished product or service, not hourly wages
The independent contractor does not sign a non-compete agreement
Any non-solicitation agreement must be narrowly defined
Any non-disclosure agreement must be narrowly defined
The worker does not wear the company uniform
The worker does not have a company e-mail account
The worker has no company benefits or wage advances
The company does not withhold taxes and issues an annual 1099
The worker has his own business cards
The worker invoices the company on his own letterhead
The worker provides goods or services to other companies
The worker is self-employed and is in a position to make a profit or loss
That said, the article is clear that for child support garnishment it shouldn’t matter if the worker is an employee or a contractor.