I am helping out a friend that is part owner to a new resturant and they are wanting to 1099 us as waitresses and cooks in the back. I look on the IRS website and from what I can tell they can NOT say we are independent contractors. Does anyone know anymore about independent contractors vs. employees and if a waitress can or can't be 1099ed.
The distinction is explained in IRS publication 15-A.
Essentially, in order to justify hiring as an independent contractor, the relationship between the business owner and the worker must be independent. The IRS publication explains the different factors used to evaluate the relationship.
As a practical matter, because the restaurant owner provides training, tools (tables, plates, silverware, kitchen equipment), a location which must be used, pays by the hour, and considers the acts of waiting tables and cooking food to be a core part of their business, it is certain that the IRS would consider waitresses and cooks to be employees, not contractors.
One possible exception -- hiring a person for a single night to work a party, paying a flat rate. That might be justifiable as a contractor.
Of course, the person that needs to tell them that is their lawyer.
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