Missouri Independent Contractor Agreement Template
Missouri's statute names the common law of agency right to control, and for two occupations it makes a specific sentence in the written contract an element of the exclusion.
Find out where you stand in Missouri
What do you need the contractor agreement for?
DocDraft provides document preparation, not legal advice.
Introduction
An Independent Contractor Agreement is a contract between a business and a self-employed worker covering scope, payment, ownership of the work product, and how the engagement ends. Whether the worker is genuinely a contractor is decided by a legal test rather than by the document's title, and Missouri is frequently described as a twenty-factor state. That is only half right, and the half that is wrong matters when you are reading the statute. RSMo 288.034.5 provides that service performed by an individual for remuneration shall be deemed to be employment unless it is shown to the satisfaction of the division that such services were performed by an independent contractor, and that in determining the existence of the independent contractor relationship, the common law of agency right to control shall be applied. That is the statutory test. The twenty factors arrive through 8 CSR 10-4.150, which directs the division to apply the common law rules under 26 U.S.C. Section 3306(i) and to consider the case law, Internal Revenue Service regulations, and Internal Revenue Service letter rulings interpreting that subsection. Missouri also makes the paperwork itself an element in two places. Under RSMo 288.034.12(16) and (17), the unemployment exclusions for licensed real estate salespersons and brokers and for direct sellers apply only where the services are performed pursuant to a written contract that provides the individual will not be treated as an employee for federal tax purposes.
Key Things to Know
- 1
The unemployment statute puts the burden on the business and names the test. RSMo 288.034.5 provides that service performed by an individual for remuneration shall be deemed to be employment unless it is shown to the satisfaction of the division that such services were performed by an independent contractor, and that in determining the existence of the independent contractor relationship, the common law of agency right to control shall be applied. It adds the operative distinction: if the alleged employer retains the right to control the manner and means by which the results are to be accomplished, the individual is an employee, and if only the results are controlled, the individual is an independent contractor.
- 2
The twenty factors are real in Missouri practice but they are not in the statute. They enter through 8 CSR 10-4.150, whose stated purpose is to ensure consistent interpretation of RSMo 288.034.5 and which directs the division to apply the common law rules used in determining the employer-employee relationship under 26 U.S.C. Section 3306(i), considering the case law, Internal Revenue Service regulations, and Internal Revenue Service letter rulings interpreting that subsection. The Division of Employment Security then applies the twenty factors as guides or aids rather than a bright-line rule, and states that no single factor is conclusive.
- 3
Two occupational exclusions turn on specific contract wording. RSMo 288.034.12(16) excludes services performed by a licensed real estate salesperson or licensed real estate broker where substantially all of the remuneration is directly related to sales or other output rather than to the number of hours worked, but only where the services are performed pursuant to a written contract between the individual and the person for whom the services are performed and such contract provides that the individual will not be treated as an employee with respect to such services for federal tax purposes.
- 4
RSMo 288.034.12(17) applies the identical written contract and federal tax condition to direct sellers, meaning those engaged in delivering or distributing newspapers or shopping news, or in selling or soliciting the sale of consumer products in the home or otherwise than in a permanent fixed retail establishment, where eighty percent or more of the remuneration is directly related to sales rather than to the number of hours worked. Miss the sentence and the exclusion is unavailable, leaving the 288.034.5 presumption of employment in place.
- 5
Outside those two exclusions, nothing in Missouri law requires a written independent contractor agreement. The workers' compensation act defines employee at RSMo 287.020.1 as every person in the service of any employer under any contract of hire, express or implied, oral or written, so an unwritten arrangement is squarely covered. The document is still the best available record of the right-to-control facts the division and the courts examine.
- 6
Workers' compensation gives no interpretive help to either side. RSMo 287.800.1 directs administrative law judges, the labor and industrial relations commission, the division of workers' compensation, and reviewing courts to construe the chapter strictly, and RSMo 287.800.2 requires them to weigh the evidence impartially without giving the benefit of the doubt to any party when resolving factual conflicts. Separately, RSMo 287.040.1 makes a person who has work done under contract on or about his premises which is an operation of the usual business he there carries on a statutory employer liable to that contractor, its subcontractors, and their employees, which is a liability rule rather than a classification test.
- 7
The Minimum Wage Law supplies no test of its own. RSMo 290.500(3) defines employee circularly as any individual employed by an employer and 290.500(4) defines employer as any person acting directly or indirectly in the interest of an employer, and chapter 290 contains no definition of employ and no suffer or permit to work language. RSMo 290.505.4 says the section shall be interpreted in accordance with the Fair Labor Standards Act, but that conformity clause is limited by its terms to that overtime section, so a favorable outcome under the federal economic realities test does not automatically carry into a state wage claim.
Key decisions before you file
Before you file a Independent Contractor Agreement in Missouri, a few decisions shape the document: which option to choose and what each one means. The Independent Contractor Agreement guide walks through them.
Open the Independent Contractor Agreement guideCustomize your Independent Contractor Agreement Template with DocDraft
Missouri Requirements for Independent Contractor Agreement
Service performed by an individual for remuneration shall be deemed to be employment unless it is shown to the satisfaction of the division that such services were performed by an independent contractor, and in determining the existence of that relationship the common law of agency right to control shall be applied. If the alleged employer retains the right to control the manner and means by which the results are to be accomplished, the individual is an employee. If only the results are controlled, the individual is an independent contractor.
The regulation states its purpose as ensuring consistent interpretation of RSMo 288.034.5 and directs that in order to interpret that section the division shall apply the common law rules applicable in determining the employer-employee relationship under 26 U.S.C. Section 3306(i), considering the case law, Internal Revenue Service regulations, and Internal Revenue Service letter rulings interpreting and applying that subsection. The Division of Employment Security then applies the twenty factors as guides or aids, with no single factor conclusive.
Services performed by a licensed real estate salesperson or licensed real estate broker are excluded from employment only where substantially all of the remuneration, whether or not paid in cash, is directly related to sales or other output rather than to the number of hours worked, the services are performed pursuant to a written contract between the individual and the person for whom the services are performed, and that contract provides that the individual will not be treated as an employee with respect to such services for federal tax purposes.
The identical written contract and federal tax provision applies to direct sellers engaged in delivering or distributing newspapers or shopping news, or in selling or soliciting the sale of consumer products in the home or otherwise than in a permanent fixed retail establishment, where eighty percent or more of the remuneration is directly related to sales rather than to the number of hours worked. Omitting the federal tax sentence forfeits the exclusion.
The workers' compensation act defines employee as every person in the service of any employer under any contract of hire, express or implied, oral or written, or under any appointment or election, so an unwritten engagement is covered on the same terms as a written one. A written agreement is therefore evidentiary outside RSMo 288.034.12(16) and (17), and its value lies in matching the recorded terms to how the work is actually controlled.
Administrative law judges, associate administrative law judges, legal advisors, the labor and industrial relations commission, the division of workers' compensation, and any reviewing courts shall construe the provisions of the chapter strictly, and shall weigh the evidence impartially without giving the benefit of the doubt to any party when weighing evidence and resolving factual conflicts. Neither side gets an interpretive advantage, which contrasts with the burden the unemployment act places on the business.
Any person who has work done under contract on or about his premises which is an operation of the usual business which he there carries on shall be deemed an employer and shall be liable to that contractor, its subcontractors, and their employees when injured or killed on or about the premises while doing work in the usual course of his business. RSMo 287.040.2 shifts that status to the contractor where premises are being erected, demolished, altered, or repaired, and RSMo 287.040.4 exempts the for-hire motor carrier and owner-operator relationship.
Employee is defined as any individual employed by an employer and employer as any person acting directly or indirectly in the interest of an employer in relation to an employee, and chapter 290 contains no definition of employ and no suffer or permit to work language. RSMo 290.505.4 requires interpretation in accordance with the Fair Labor Standards Act but is limited by its terms to that overtime section, so a federal economic realities outcome does not automatically carry into a state wage claim. RSMo 290.500(3)(k) separately excludes individuals whose earnings derive in whole or in part from sales commissions and whose hours and places of employment are not substantially controlled by the employer.
An employer knowingly misclassifies a worker if that employer fails to claim the worker as an employee but knows that the worker is an employee, the attorney general may seek an injunction, and a court finding knowing misclassification shall award penalties of fifty dollars per day per misclassified worker up to a maximum of fifty thousand dollars. RSMo 285.500(2) limits employer to entities with five or more individuals performing public works as defined in RSMo 290.210, and RSMo 285.506 places the burden of proof on the state.
Frequently Asked Questions
Not by statute, which is the correction most summaries need. RSMo 288.034.5 provides that in determining the existence of the independent contractor relationship, the common law of agency right to control shall be applied, and the section does not mention Revenue Ruling 87-41 or the twenty factors. The factors enter through 8 CSR 10-4.150, which directs the division to apply the common law rules under 26 U.S.C. Section 3306(i) and to consider the case law, Internal Revenue Service regulations, and letter rulings interpreting that subsection. The Division of Employment Security then applies the factors as guides.
For two occupations, a specific sentence in the contract is an element of the exclusion rather than evidence of it. RSMo 288.034.12(16) and (17) exclude licensed real estate salespersons and brokers and direct sellers from employment only where the services are performed pursuant to a written contract that provides the individual will not be treated as an employee with respect to such services for federal tax purposes. Without that provision the exclusion is unavailable and the general presumption of employment applies.
The business. RSMo 288.034.5 deems service performed for remuneration to be employment unless it is shown to the satisfaction of the division that the services were performed by an independent contractor. The statute then supplies the dividing line: if the alleged employer retains the right to control the manner and means by which the results are to be accomplished, the individual is an employee, and if only the results are controlled, the individual is an independent contractor.
Only for the two excluded occupations described above. There is no general writing requirement, and the workers' compensation act defines employee at RSMo 287.020.1 as every person in the service of any employer under any contract of hire, express or implied, oral or written, so an unwritten engagement is fully within the statute. A written agreement remains the practical way to record the right-to-control facts the division and the courts examine.
The contract must provide that the individual will not be treated as an employee with respect to such services for federal tax purposes. The exclusions also carry a remuneration condition: substantially all of the remuneration for a licensed real estate salesperson or broker, and eighty percent or more for a direct seller, must be directly related to sales or other output rather than to the number of hours worked. Both the wording and the pay structure have to be right.
No, and the Minimum Wage Law supplies no test of its own. RSMo 290.500(3) defines employee as any individual employed by an employer and 290.500(4) defines employer circularly as well, and chapter 290 contains no definition of employ and no suffer or permit to work language. RSMo 290.505.4 directs that the section be interpreted in accordance with the Fair Labor Standards Act, but by its terms that clause reaches only that overtime section, so a result under the federal economic realities test does not automatically decide a state wage claim.
Chapter 287 never defines independent contractor, and RSMo 287.020.1 defines employee as every person in the service of any employer under any contract of hire, express or implied, oral or written. The interpretive posture is unusually neutral: RSMo 287.800.1 requires the chapter to be construed strictly and RSMo 287.800.2 requires evidence to be weighed impartially without giving the benefit of the doubt to any party. A worker asserting employee status therefore gets no thumb on the scale, unlike under the unemployment act.
RSMo 287.040.1 provides that any person who has work done under contract on or about his premises which is an operation of the usual business which he there carries on shall be deemed an employer and shall be liable to that contractor, its subcontractors, and their employees when injured or killed on or about the premises while doing work in the usual course of his business. It is a liability extension rather than a classification test, so it can make a genuine contractor's injury compensable against the hirer without making that contractor an employee.
RSMo 285.503.1 provides that an employer knowingly misclassifies a worker if that employer fails to claim the worker as an employee but knows that the worker is an employee, RSMo 285.512 authorizes the attorney general to seek an injunction, and RSMo 285.515 requires a court finding knowing misclassification to award penalties of fifty dollars per day per misclassified worker up to a maximum of fifty thousand dollars. Two limits are worth knowing: RSMo 285.500(2) reaches only entities with five or more individuals performing public works as defined in RSMo 290.210, and RSMo 285.506 places the burden of proving misclassification on the state.
No. Outside the two occupational exclusions, the contract is evidence of intent and of the parties' arrangement, and the division and the courts look at the right to control the manner and means of the work as it is actually performed. A carefully drafted Missouri agreement is worth having because it aligns the record with the practice, not because it forecloses the question. Attorney review is an option where the engagement is substantial or the classification is genuinely contestable.