Office of Federal Contract Compliance Programs (OFCCP) has posted guidance for federal contractors to determine which workers are “employees” and which are “independent contractors”, or other non-employee workers. Workers that are “employees” must be included in the contractor’s Affirmative Action Programs (AAP) under Executive Order 11246 (race, color, religion, sex, or national origin), Section 503 of the Rehabilitation Act (individuals with disabilities ), and the Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA)(protected veterans).
If a contractor is unsure whether a particular individual is an “employee,” the contractor should examine the individual worker’s relationship to the contractor using specific factors called “Darden” factors. The Darden factors take into account:
- The contractor’s right to control when, where, and how the individual performs the job
- The skill required for the job
- Whether the contractor furnishes the tools, materials, and equipment
- The location of work
- The duration of the relationship between the parties
- Whether the contractor has the right to assign additional projects to the individual
- The extent of the individual’s discretion over when and how long to work
- The method of payment (i.e., by the hour, week, or month)
- The contractor’s role in hiring and paying assistants
- Whether the individual’s work is part of the regular business of the contractor
- Whether the contractor is in business
- The provision of employee benefits to the individual
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