Statutory Employee

What is a Statutory Employee ?


A statutory employee is a type of independent contractor who, for certain employment tax purposes, is treated as an employee.

Qualifications for a Statutory Employee

An independent contractor must meet specific criteria and fall into one of the following four categories defined by the Internal Revenue Service (IRS) to be considered a statutory employee:


  • Commission-based Drivers: This includes drivers who distribute meat, beverages (excluding milk), vegetables, fruit, bakery products, laundry, or dry cleaning.
  • Full-time Insurance Salespeople: Those who primarily sell life insurance or annuity contracts for one life insurance company.
  • Home-based Workers: Workers who use materials supplied by an employer and work according to the employer's specifications.
  • Traveling Salespeople: Full-time salespeople who solicit orders from businesses such as wholesalers, retailers, contractors, or operators of hotels and restaurants for sales in their business operations, and for whom this is their principal business activity.


In addition to falling into one of these categories, the contractor must:

  • Perform most of their services personally.
  • Not have a substantial investment in the equipment or products used in their work.
  • Work on a continuous basis for the same company.

Difference Between Statutory Employees and Independent Contractors

If an independent contractor meets the above criteria and belongs to one of the specified categories, employers must treat them as employees for Medicare and Social Security tax purposes.

Importance of Correct Worker Classification

Correctly classifying workers as statutory employees or independent contractors is crucial. Misclassification can lead to fines, back wages, and other penalties. It's important for employers to use resources like worker misclassification analyzers to avoid such issues.

Final Thoughts 

In summary, understanding the concept of a statutory employee is vital for HR professionals, especially when dealing with independent contractors who might fall into this category. This ensures compliance with tax laws and prevents potential legal and financial repercussions.