Kansas Independent Contractor Agreement Template
Kansas is listed as an ABC state almost everywhere and is not one: its unemployment statute states the control test in reverse, so nothing in it presumes that your worker is an employee.
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Introduction
An Independent Contractor Agreement is a contract between a business and a self-employed worker covering scope of work, payment, ownership of the work product, and how the engagement ends. Before drafting one for Kansas work, correct a widely repeated error about the state. Kansas appears on many published lists of ABC test jurisdictions. Its unemployment insurance statute is not an ABC test and contains neither an outside the usual course of business prong nor an independently established trade prong. K.S.A. 44-703(i)(3)(D) instead codifies the common law right to control standard and, importantly, states it affirmatively: services are deemed employment if the business for which the activities are performed retains not only the right to control the end result but the manner and means by which the end result is accomplished. The polarity of that sentence is the whole point. An ABC statute begins from deemed employment and puts the burden on the hiring party to prove its way out. The Kansas provision begins from nothing and makes employment the conclusion that has to be established, so there is no employee presumption anywhere in the Kansas unemployment statute. Kansas is still not a permissive state. Wage claims are decided under a twenty factor right to control test that the Kansas Supreme Court adopted in Craig v. FedEx Ground Package System, Inc., 300 Kan. 788 (2014), a case in which drivers who had signed operating agreements calling them contractors were held to be employees. And K.S.A. 44-503(a) can make a business liable for workers' compensation to a genuine contractor's own workers.
Key Things to Know
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Kansas is not an ABC state, whatever the aggregator lists say. K.S.A. 44-703(i)(3)(D) provides that services performed by an individual for wages or under any contract of hire shall be deemed to be employment subject to this act if the business for which activities of the individual are performed retains not only the right to control the end result of the activities performed, but the manner and means by which the end result is accomplished. There is no prong about the usual course of business and no prong about an independently established trade.
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Read the polarity, because it decides who has to prove what. The Kansas sentence makes control the trigger for employment rather than the escape hatch from it, so employment is the conclusion a claimant or the agency has to reach on the facts. That is the opposite structure from a deemed employment statute, and it means the Kansas unemployment chapter creates no presumption running against the hiring business.
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The unemployment definition reaches back to ordinary agency law as well. K.S.A. 44-703(i)(3)(B) covers any individual who, under the usual common law rules applicable in determining the employer-employee relationship, has the status of an employee subject to the provisions of subsection (i)(3)(D). The two subsections work together, so the familiar common law indicia still supply the content of the analysis.
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Wage claims run on twenty factors, and a signed contractor designation does not carry them. In Craig v. FedEx Ground Package System, Inc., 300 Kan. 788, 797 to 798 (2014), the Kansas Supreme Court held that the twenty factor test is the tool to be used in Kansas to determine whether an employer and employee relationship exists under the Kansas Wage Payment Act, adding that the test includes economic reality considerations while maintaining the primary focus on an employer's right to control. The drivers in Craig had signed operating agreements designating them independent contractors and were held to be employees.
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The wage statute's own definition is deliberately broad. K.S.A. 44-313(b) provides that employee means any person allowed or permitted to work by an employer, and K.A.R. 49-20-1(e) excludes an independent contractor as defined by the rules, regulations, and interpretations of the United States Secretary of Labor for purposes of the Fair Labor Standards Act. Craig read those sources together and settled on right to control as the primary focus, so a Kansas wage analysis is not a pure economic realities inquiry.
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Workers' compensation uses the same right to control analysis rather than a separate one. K.S.A. 44-508(b) defines worker, employee, claimant, or workman as any person who has entered into the employment of or works under any contract of service or apprenticeship with an employer, and never defines independent contractor, so the line is drawn by case law. Hartford Underwriters Insurance Co. v. Kansas Department of Human Resources, 272 Kan. 265 (2001), applied the right to control test in the compensation setting.
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The provision that actually costs money is the statutory employer rule. K.S.A. 44-503(a) provides that where a principal undertakes work that is part of the principal's trade or business, or which the principal has contracted to perform, and contracts with another person for its execution, the principal is liable to pay any worker employed in the execution of the work the compensation the principal would have owed had that worker been immediately employed by the principal. A worker for this purpose does not include an individual who is a self-employed subcontractor, so a genuine solo contractor is outside it while that contractor's crew is not.
Key decisions before you file
Before you file a Independent Contractor Agreement in Kansas, a few decisions shape the document: which option to choose and what each one means. The Independent Contractor Agreement guide walks through them.
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Kansas Requirements for Independent Contractor Agreement
Services performed for wages or under any contract of hire are deemed employment if the business retains not only the right to control the end result of the activities performed but the manner and means by which the end result is accomplished. There is no usual course of business prong and no independently established trade prong. Drafting should reserve to the hiring party control over results and specifications only.
Because the subsection makes retained control over manner and means the trigger for employment rather than the escape from a deemed employment default, the burden does not run against the hiring business the way it does in a deemed employment or ABC statute. Treat published summaries that describe Kansas as an ABC jurisdiction as incorrect for drafting purposes.
Covered employment includes any individual who, under the usual common law rules applicable in determining the employer-employee relationship, has the status of an employee subject to the provisions of subsection (i)(3)(D). The ordinary agency indicia therefore supply the content of the inquiry, and an agreement should record facts about tools, place of work, method of payment, assistants, and exclusivity rather than relying on a status label.
The Kansas Supreme Court held that the twenty factor test is the tool to be used in Kansas to determine whether an employer and employee relationship exists under the Kansas Wage Payment Act, and that the test includes economic reality considerations while maintaining the primary focus on an employer's right to control. K.S.A. 44-313(b) defines employee as any person allowed or permitted to work by an employer, and K.A.R. 49-20-1(e) excludes an independent contractor as defined for Fair Labor Standards Act purposes.
The drivers in Craig performed under operating agreements designating them independent contractors and were nevertheless held to be employees under the Kansas Wage Payment Act. An agreement should therefore be drafted to match the operational reality, since a reserved but unexercised right of control still counts against the classification and an inaccurate recital adds nothing.
The unemployment exclusion for a qualified real estate agent requires that the services performed by the individual be performed pursuant to a written contract between the individual and the person for whom the services are performed, and that the contract provide that the individual will not be treated as an employee with respect to such services for state tax purposes. The exclusion fails without both the writing and the recital.
The unemployment exclusion for a qualified direct seller requires that the services be performed pursuant to a written contract between the person and the person for whom the services are performed, and that the contract provide that the person will not be treated as an employee for federal and state tax purposes. Note the wording differs from the real estate provision by covering federal as well as state tax treatment.
Where a principal undertakes work that is part of the principal's trade or business, or which the principal has contracted to perform, and contracts with another for its execution, the principal is liable to pay any worker employed in the execution of the work the compensation the principal would have owed had that worker been immediately employed by the principal. Worker excludes an individual who is a self-employed subcontractor. Require certificates of coverage from any contractor who brings workers on site.
Worker, employee, claimant, or workman means any person who has entered into the employment of or works under any contract of service or apprenticeship with an employer. The Act does not define independent contractor, so the right to control test drawn from the case law governs, as applied in Hartford Underwriters Insurance Co. v. Kansas Department of Human Resources, 272 Kan. 265 (2001).
Frequently Asked Questions
No, although it is frequently listed as one. K.S.A. 44-703(i)(3)(D) codifies the common law right to control standard, not an ABC test. It contains no prong requiring the service to fall outside the usual course of the hiring party's business and no prong requiring the worker to be customarily engaged in an independently established trade. The subsection reads as a single control inquiry into whether the business retains the right to control the manner and means as well as the end result.
Not under the unemployment statute. The Kansas provision is phrased affirmatively: services are deemed employment if the business retains control over the manner and means by which the end result is accomplished. That makes employment something to be established on the facts rather than a default the hiring party must disprove, which is the reverse of how a deemed employment or ABC statute allocates the burden. No presumption operates in either direction under the Kansas Wage Payment Act either.
A twenty factor right to control test. In Craig v. FedEx Ground Package System, Inc., 300 Kan. 788 (2014), the Kansas Supreme Court held that the twenty factor test as restated in that opinion is the tool to be used in Kansas to determine whether an employer and employee relationship exists under the Kansas Wage Payment Act, and that the test includes economic reality considerations while maintaining the primary focus on an employer's right to control.
No. Craig involved full time drivers who had signed operating agreements identifying them as independent contractors, and the court held they were employees for wage purposes. A written agreement is still worth having, because it records the parties' intent and can describe the control arrangement accurately, but the facts of the working relationship govern. The safest drafting practice is to include no term the parties will not actually follow, since an unfollowed control term becomes evidence against the classification.
Not generally. Two unemployment exclusions do depend on the paperwork. A qualified real estate agent is excluded under K.S.A. 44-703(i)(4)(Q)(ii) only where the services are performed pursuant to a written contract providing that the individual will not be treated as an employee with respect to such services for state tax purposes. A qualified direct seller is excluded under 44-703(i)(4)(V)(iii) only where a written contract provides that the person will not be treated as an employee for federal and state tax purposes. Without the writing and the specific recital, neither exclusion applies.
Yes, and this is the exposure most often missed. K.S.A. 44-503(a) provides that a principal who contracts out work that is part of the principal's trade or business, or that the principal has contracted to perform, is liable to pay any worker employed in the execution of that work the compensation the principal would have owed had the worker been immediately employed by the principal. The subsection excludes an individual who is a self-employed subcontractor, so it bites where the contractor brings a crew.
Less than many states. The unemployment statute codifies right to control, the wage act uses the twenty factor right to control test after Craig, and workers' compensation applies right to control through case law, including Hartford Underwriters Insurance Co. v. Kansas Department of Human Resources, 272 Kan. 265 (2001). The common thread is the right to control, so Kansas does not show the sharp act to act splits some states do. The practical differences lie in the burden and in the statutory employer rule rather than in the test itself.
K.S.A. 44-508(b) defines worker, employee, claimant, or workman as any person who has entered into the employment of or works under any contract of service or apprenticeship with an employer. The Act never defines independent contractor, so the boundary is drawn entirely by case law under the right to control standard rather than by any statutory list of criteria.
It should reserve to the hiring party the right to specify the result, the specifications, and the delivery date, and should stop there. Because the statutory trigger is retaining the right to control the manner and means, terms that reserve authority over methods, sequence, hours, or supervision cut against the classification even if that authority is never exercised. A retained right counts, so review the agreement for reserved powers as well as for what the parties intend to do in practice.