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Method of Payment

Persons who are paid as employees (the employer pays federal or state withholding tax, FICA, insurance, and so on) will generally be considered employees for determining vicarious liability. If the worker is a volunteer who receives no pay but does a defined job that is usually done by paid employees, the volunteer is also treated as an employee. If FICA should be paid but is not because the employee and the employer are trying to evade their tax liabilities, the court can still find the putative employer vicariously liable for the person's actions. In addition, the employer may have both financial and criminal liability. The Internal Revenue Service has become intolerant of paying an individual as a contract worker to avoid employment taxes and FICA. If the worker is truly a contract worker, is a volunteer who is not displacing a paid worker, or is paid by someone else, then vicarious liability is determined by the extent to which the individuals control their own work.

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