Banking optimize

10 legal issues that consultants should know about

Don't get blindsided by some legal misstep you never even heard of. Calvin Sun runs through the nitty-gritty issues all consultants should be prepared for.

As a consultant, you face more than technical challenges. You face legal ones as well. For this reason, the more you know about these legal matters, the less chance you have of getting into trouble. Although this article is not meant as legal advice, it can help you be aware of some issues that concern you. At the very least, it will alert you to questions and issues you might need to raise with your own attorney.

Note: This article is also available as a PDF download.

1:  Status -- consultant or employee?

Make sure of your legal relationship to your client. Are you really an independent contractor, so you should receive a form 1099 at the end of the year reflecting your billings? Or could you actually be considered an employee, who should receive a form W-2?

The company using your services most likely prefers the former, and you might also. The Internal Revenue Service in the past used a series of 20 questions to determine whether a person was a contractor or an employee. However, the IRS recently streamlined those questions into a three general categories:

  • Behavioral control (i.e., how much direction and control the business has over the individual, in terms of working hours, sequence of actions, and tools and equipment to be used)
  • Financial control (i.e., how the individual is paid, e.g., weekly or hourly vs. a flat fee)
  • Type of relationship (i.e., how permanent it is and how the parties view the relationship)

Generally speaking, the greater the behavioral control, and the greater the financial control, and the more permanent the relationship is, the greater the chance that the IRS will view you as an employee rather than as an independent contractor.

2: Income and self employment taxes

The distinction between employee and independent contractor will affect the way you handle your taxes. As an employee, your employer is responsible for withholding income taxes from your paycheck. In addition, you and your employer each contributes half to Social Security payments.

If, however, you are an independent contractor, you are responsible for your own taxes because the organization that pays you generally will not withhold anything. You're also responsible, depending on how you're organized legally, for completing appropriate business tax returns, such as a Schedule C , if you're a sole proprietor.

3: Sales tax on your fees?

Check with your state's department of revenue to see whether the fees you charge clients are subject to tax. If they are, and you are not collecting and remitting such taxes, you could have a problem.

4: Intellectual property / "work made for hire"

In the course of your consulting work, you may create intellectual property for use by your clients. Such work might be entitled to copyright protection. In this case, be clear with your client about such copyright ownership. You do not want your work to be considered a "work made for hire." The copyright for such a work would reside with your client, even though you were the one to create the work.

The client has high hurdles to overcome to claim work made for hire status -- but be safe and avoid misunderstanding. In your statement of work or in your contract, consider including a clause that expressly excludes your work product from being classified as a work made for hire.

5: Nonexclusive vs. exclusive license

If you are the copyright holder of intellectual property, you can permit others to use that property via a license. In return, of course, you probably would charge the other party a fee, or royalty, for the privilege of holding this license.

When you grant licensing rights, you can do so exclusively (to only one license holder) or nonexclusively (to more than one license holder). You would do an exclusive license, in most cases, because your client asked or demanded it. In such a situation, obviously, you would probably want to charge a higher royalty for an exclusive license than a nonexclusive license.

6: Professional liability vs. general liability insurance

You should consider at least two types of insurance: professional liability and general liability insurance. While both protect you from things you do or fail to do, the specific focus of each is different. Professional liability insurance (also known as errors and omissions insurance) protects you from the consequences of bad decisions and actions with respect to your consulting. For example, if your improper systems implementation caused the client's business to shut down, resulting in loss of revenue, your professional liability policy might protect you from a client lawsuit.

General liability insurance protects you from other liability. For example, such a policy might protect you in the event that your client falls within your office or you accidentally spill hot coffee over an audience member at one of your presentations.

7: "Claims made" vs. "occurrence" insurance coverage

Liability insurance usually differs from other insurance, such as automobile, in one important respect: Policies of the former are generally based on "claims made," while those of the latter are based on "occurrence."

Suppose you are involved in an incident on June 1, while you hold an insurance policy with company A. On July 1, you change from insurance company A to insurance company B. Then, on August 1, the other person files a claim regarding the incident. If both policies were "occurrence" policies, company A would be responsible for this claim, even though it no longer carries your insurance. However, if both policies were "claims made" policies, company B would be responsible, even though the incident occurred prior to your becoming their policyholder.

8: Business organization option -- the sole proprietorship

The way you organize your business determines the amount of reporting you do as well as the amount of legal protection you have. If you are in business by yourself, the simplest form of organization is the sole proprietorship. In Pennsylvania, in fact, if you include your name as part of your business name (e.g., you are John Smith and your business is John Smith Consulting), you don't even need to register with the state. But if the sole proprietorship business name does not include your name, you would need to file a "fictitious name registration." Such a filing is designed to protect the public so that they know who is involved with a particular business.

While a sole proprietor provides for ease of tax reporting, it involves legal risk. If you are sued because of your business, you have no legal way to shield your personal assets -- they can be used to satisfy a judgment against you. Consider this fact carefully if you choose a sole proprietorship.

9: Business organization option -- the corporation

A corporation offers significantly more legal protection. If you are sued over acts of your corporation, generally only the assets of that corporation can be used in a judgment. Your own personal assets, if separate from the corporation, usually can't be used. However, a corporation requires its own set of tax returns and typically requires formal meetings and documentation of those meetings.

To form a corporation, you'll probably need to file articles of incorporation with your state and you'll likely need officers, a board of directors, and bylaws. For further information, check with your state's Department of State (not to be confused with the U.S. Department of State).

10: Business organization option -- the limited liability company (LLC)

A third form of organization, available in many states, is that of a limited liability company (LLC). Think of an LLC as combining the best features of a sole proprietorship and a corporation. On the one hand, the LLC does not file its own returns -- you include income on your own Schedule C, just as for a sole proprietorship. On the other hand, if you're sued, only the assets of the LLC are generally at risk -- not your own personal assets. For this reason, many consultants use an LLC form of organization.


About

Calvin Sun is an attorney who writes about technology and legal issues for TechRepublic.

26 comments
finlaw.in
finlaw.in

Hi Calvin,
It is really a helpful post and thank you for giving tips.
We are also providing Legal & Financial Consultancy.

Thank You,
Finlaw.in

Falkows149
Falkows149

The key business issue behind ownership and is the ability of the contractor to perform similar work for other clients. I don't think it is realistic in most instances for an individual independent contractor to retain ownership of the work. Nor do I think that it is realistic for an individual independent contractor to give anything less than exclusive rights to the work to the client. What is realistic and necessary is that the contractor retain the right to create similar works for others. In a best case scenario, that would included the right to create and license derivative works to the work peformed for the client. chris@falkowskipllc.com

pinnum
pinnum

As a technical writing consultant, I wonder about legal issues relating to documents. For example, when I write a document, the client is supposed to review it. Doesn't that pass some or all of the ultimate responsibility for its veracity to the client?

mikifinaz1
mikifinaz1

I started consulting and none of this was really covered as widely as it is now. I searched out a lawyer who specialized in this area of the law and every cent I paid, repaid me one hundred fold. Back then the whole concept was viewed with suspicion and most employers wanted to get their hooks in people so that they would have the whip hand in any situation.

pgit
pgit

How about a contract line item by which the customer agrees to hold the contractor harmless for at least certain potentialities?

herlizness
herlizness

> well, let's be clear about a few real world issues here: (1) almost any sophisticated client / large company will absolutely insist on their absolute ownership of the code. period. you don't have to accept this but you'll likely lose the gig if you argue the point; I can tell you with certainty that I would not allow anyone in my organization to contract with an indy on anything other than a "we own the code" basis (2) don't overestimate the value of commonplace routines you develop; they may at times be clever and useful but it's the very rare case where an organzation couldn't finda dozen other people to implement the same solution a different way; to put it another way, in most cases ownership of copyright has little or no value to the consulting programmer so there's no point in fussing over it; on the other hand, the one thing you do want to be able to do is re-use patterns and idioms on your next gig. frankly, I've yet to see a programmer not be able to do so. (3) what employers need to be mindful of is that although they will typically "own the code" in many cases they will have no copyright interest in it because the subject matter is not original; programmers have been known to use code they found in an APress book in their work (4) related to point 3, consultants need to be careful about incorporation of third party libraries in their work; it is not ok to violate a lib owner's copyright in your work on a gig; you're subjecting your client to liability and they will NOT be happy if they're sued for infringement

hineses@hotmail.com
hineses@hotmail.com

Another thing to consider is health insurance. As things currently exist in my state of North Carolina, all health insurance providers are required to offer coverage to corporations but not to LLCs. Depending on your situation, they may still offer you coverage but they are not required to. Even if they are required to, it doesn't mean it's cost effective.

bfpower
bfpower

Always good to see Calvin posting on TR. Thanks!

lawandco
lawandco

Although he says he is a lawyer, he is misleading on item 4. Almost any contract work requires some sort of task order from the client. When they pay you for the work you do on that task order - even if it is verbal - everything you do is their property. Any time someone pays you it becomes their property and it will be difficult for you, not them, to claim that it is not their intellectual property. Consultants almost never win that argument.

NeilThyer
NeilThyer

As already mentioned by TobiF, items 1, 2 and 3 are specific to the US. Items 8, 9 and 10 are just variations, not legal reasons. 9th should include - cross border contracts should include a arbitration option where a neutral or legally recognized location for both countries. 10th should be the exit clause for the contract to enable termination and reduction of liability.

TobiF
TobiF

I have a strong feeling that most of this article revolves solely around the situation in the U.S. Nothing wrong with that. After all, it's a large and influential country in many areas. I just thought it's worth mentioning.

nwnick
nwnick

I've always wondered how having a Corporate entity between you and the customer would actually help much. If the customer sued, wouldn't he sue both the corporation and the individual?

ian
ian

As a consultant, you are providing advice that may be outside the client?s expertise or knowledge. That?s why they are consulting you. Many clients do not understand technical, legal or financial speak and may be taking your word as being correct while you, on the other hand, may be assuming they do understand. I cannot afford to assume so I include a ?release from liability? clause into my contracts. I?ve never needed it but one day it may save my a**

AnsuGisalas
AnsuGisalas

At the very least there's gonna be a massive wad of court ruling precedents. That's better than law, you know. It's law with the eventualities taken out. It's worth checking out, it can tell you what you need or needn't worry about.

AnsuGisalas
AnsuGisalas

Being no expert, I can still see very clearly how those 4 points make solid sense.

hineses@hotmail.com
hineses@hotmail.com

Another thing to consider is health insurance. As things currently exist in my state of North Carolina, all health insurance providers are required to offer coverage to corporations but not to LLCs. Depending on your situation, they may still offer you coverage but they are not required to. Even if they are required to, it doesn't mean it's cost effective.

Gonzalo34
Gonzalo34

Looking forward for the '10 legal issues that cross border consultants should know about' article.

Gis Bun
Gis Bun

Even then, since the US has laws that generally exceed just about every country, if the ten are followed, I don't think you'd have an issue in any other country [unless they have something out of the ordinary]. Oh and since the majority of readers foir TechRepublic are Americans, it would make sense that it would be US based. If you wropte an article about this issue for those living un UAE, Slovakia, or Mozambique I don't think many would read it.

sliverson
sliverson

I'm not a lawyer, but I believe that it boils down to this: if the company officer performed his/her duties faithfully and broke no laws, then generally the corporate shield will protect them in a lawsuit against them personally. However, if the officer broke the law or didn't faithfully dischage his duties, then the corporate veil can be punctured, and the officer can be personally liable.

unhappyuser
unhappyuser

Anyone even remotely involved will get sued. The better chance that the plaintiff will get money! EMD

NeilThyer
NeilThyer

11th - make sure you have the right visa. I have heard many times for people arriving in Asia and not having the correct visa, only to be returned home. Organisations like APEC www.apec.org assist business people with the visa programs. 12th Intl Taxation and repatriation of cash, countries like China are currency controlled, so repatriation of cash is very difficult, and often requires additional legal council.

Gis Bun
Gis Bun

You need to follow the laws [and practices] used in the country that you are working in. So if you are from Chile and take a consulting job in Argentina, you have to follow their laws. Anything that isn't covered, you and whoever you work for would have to agree on the remaining issues.

PMPsicle
PMPsicle

It's both easier and more difficult to get past the corporate veil than most people presume. Some people presume that the corporate veil can't be bypassed. However, for a director there is a personal liability issue especially with regards to any money being held. Other people presume that the corporate veil can be easily bypassed. However, generally speaking only where personal liability arises can the veil be lifted by the courts. Basically, the judge needs to decide that the corporation is a legal fiction. Not something they are willing to do frequently without a strong precedent. So in fact, unless the other lawyer figures he can bypass the veil naming you personally is a legal game. (He wants the judge to judge both at the same time -- therefore reducing legal costs). Of course, your law may vary so ask a lawyer before believing anything on the internet!

ian
ian

I don't think this would this affect people who conduct business electronically. Some people never leave their office but are consulting and providing services globally. Is the repatriation of money tied to the visa? IE. the reason you go to another country? I have dealt with clients in nine different countries and never heard this phrase before.

AnsuGisalas
AnsuGisalas

You'd be able to sue stockholders too... messy.