New Hampshire Independent Contractor Agreement Template

Introduction

Key Things to Know

1. 1

   Workers' compensation starts from a presumption of employment. Under RSA 281-A:2, VI(a) coverage reaches any person in the service of an employer under any express or implied, oral or written contract of hire, and RSA 281-A:2, VI(b)(1) presumes that a person who performs services for pay for an employer is an employee. The presumption is rebutted only by proof that the individual meets all of the criteria in subparagraphs (A) through (G), so the hiring party carries the burden and a single unmet criterion defeats contractor status.

2. 2

   The seven criteria are specific and conjunctive. They are: an identification number possessed or applied for, or in the alternative a written agreement to carry out the responsibilities imposed on employers under the chapter; control and discretion over the means and manner of performance, with the result rather than the means being the primary element bargained for; control over the time when the work is performed; hiring and paying the worker's own assistants; holding out as being in business or being registered with the State as a business, with continuing or recurring business liabilities; responsibility for satisfactory completion, with contractual responsibility for failure to complete; and not being required to work exclusively for the employer.

3. 3

   RSA 281-A:2, VI(c) is a real drafting safe harbor, which most states do not offer. A written agreement signed by the employer and the person providing services, on or about the date such person was engaged, which describes the services to be performed and affirms that the services are to be performed in accordance with each of the criteria in subparagraphs (b)(1)(A) through (G), is prima facie evidence that the criteria have been met. The provision also states that nothing in it requires such an agreement in order to establish that the criteria have been met, so it is an option and not a mandate.

4. 4

   The timing condition is the part that gets missed. The statute asks for an agreement signed on or about the date such person was engaged. A contract assembled weeks into the engagement, or produced once a claim has been filed, does not satisfy that wording, and no amount of accurate content cures a late signature. Signing before or at the start of the work is what preserves the benefit.

5. 5

   The safe harbor appears to stop at the workers' compensation chapter. RSA 275:42, II defines employee for wage payment purposes and restates the same seven criteria in its own text, cross-referencing RSA 281-A:2, VI(b)(2), (3), and (4) for the direct seller, real estate and appraiser exemptions, but it does not incorporate RSA 281-A:2, VI(c). On the face of the statutes, a signed affirmation that is prima facie evidence for a comp claim carries no equivalent statutory effect in a wage claim, so it should not be relied on as if it did.

6. 6

   Unemployment insurance is a different test again. RSA 282-A:9, III provides that services performed for wages shall be deemed employment unless and until it is shown to the satisfaction of the commissioner of the department of employment security that the individual is free from control or direction over performance both under the contract of service and in fact, that the service is either outside the usual course of the business or performed outside all of the places of business of the enterprise, and that the individual is customarily engaged in an independently established trade, occupation, profession, or business. The seven criteria and the signed affirmation play no part in that analysis.

7. 7

   Misclassification carries its own penalties, including personal exposure. RSA 281-A:2, VI(d) authorizes a civil penalty of up to $2,500 for misrepresenting the relationship, plus $100 for each employee for each day of noncompliance for up to one year, and imposes personal liability on any person with control over the disbursement of funds and salaries who knowingly violates the subparagraph. Four categories sit outside the employee presumption altogether: direct sellers, qualified real estate brokers or agents, real estate appraisers, and persons providing services as part of a residential placement for individuals with developmental, acquired, or emotional disabilities.

New Hampshire Requirements for Independent Contractor Agreement

• New Hampshire Employee Presumption for Workers' Compensation (RSA 281-A:2, VI(a) and VI(b)(1))

  Coverage reaches any person in the service of an employer under any express or implied, oral or written contract of hire, and any person who performs services for pay for an employer is presumed to be an employee. The presumption may be rebutted only by proof that the individual meets all of the criteria in subparagraphs (A) through (G). The hiring party bears the burden and all seven criteria must be established, so a single unmet criterion defeats contractor status.

• New Hampshire Written Agreement Safe Harbour (RSA 281-A:2, VI(c))

  A written agreement signed by the employer and the person providing services, on or about the date such person was engaged, which describes the services to be performed and affirms that such services are to be performed in accordance with each of the criteria in subparagraphs (b)(1)(A) through (G), is prima facie evidence that the criteria have been met. The same subparagraph states that nothing in it requires such an agreement to establish that the criteria have been met, so the agreement is an evidentiary option rather than a condition of status.

• New Hampshire Signature Timing Condition (RSA 281-A:2, VI(c))

  The prima facie effect attaches only where the agreement is signed on or about the date the person was engaged. A document executed well after work begins, or assembled once a claim has been made, falls outside the wording, and accurate content does not cure late execution. Build the signature into onboarding so the agreement is signed before or at the start of the work, and date it accurately rather than backdating it.

• New Hampshire Seven Criteria Must All Be Satisfied (RSA 281-A:2, VI(b)(1)(A) through (G))

  The criteria are an identification number possessed or applied for, or in the alternative a written agreement to carry out the responsibilities imposed on employers under the chapter; control and discretion over the means and manner of performance, with the result rather than the means being the primary element bargained for; control over the time when the work is performed; hiring and paying the worker's own assistants; holding out as in business or registration with the State as a business, with continuing or recurring business liabilities; responsibility for satisfactory completion, with contractual responsibility for failure to complete; and no requirement to work exclusively for the employer.

• New Hampshire Wage Act Repeats the Criteria Without the Safe Harbour (RSA 275:42, II)

  The wage payment definition of employee excludes only a person who meets all of the same seven criteria, and cross-references RSA 281-A:2, VI(b)(2), (3), and (4) for the direct seller, real estate and appraiser exemptions. It does not incorporate RSA 281-A:2, VI(c). The prima facie effect of a signed affirmation therefore appears confined to the workers' compensation chapter, and the agreement should not be presented to a wage claimant as if it carried the same statutory weight.

• New Hampshire Unemployment Insurance Runs the ABC Test (RSA 282-A:9, III)

  Services performed for wages shall be deemed employment unless and until it is shown to the satisfaction of the commissioner of the department of employment security that the individual has been and will continue to be free from control or direction over performance both under the contract of service and in fact, that the service is either outside the usual course of the business or performed outside all of the places of business of the enterprise, and that the individual is customarily engaged in an independently established trade, occupation, profession, or business. The seven criteria and the written affirmation have no role in this test.

• New Hampshire Identification Number Alternative Is Contract Conditioned (RSA 281-A:2, VI(b)(1)(A); RSA 275:42, II(a))

  The first criterion is satisfied where the worker possesses or has applied for a federal employer identification number or social security number. Where neither is held, the criterion can be met only in the alternative, by the worker having agreed in writing to carry out the responsibilities imposed on employers under the chapter. That alternative is itself a drafting task, so capture either the identification number or the written undertaking in the agreement rather than leaving the point blank.

• New Hampshire Direct Seller Exemption Requires Prescribed Contract Content (RSA 281-A:2, VI(b)(3)(B))

  The direct seller exemption applies only where the services are performed pursuant to a written contract with the person for whom the services are performed, which provides that the individual will not be treated as an employee for federal tax purposes. This is prescribed contract content rather than a general drafting preference, so the clause must appear in the written contract for the exemption to be available.

• New Hampshire Misclassification Penalties and Personal Liability (RSA 281-A:2, VI(d))

  A civil penalty of up to $2,500 may be imposed for misrepresenting the relationship, together with $100 for each employee for each day of noncompliance for up to one year. Personal liability attaches to any person having control over the disbursement of funds and salaries who knowingly violates the subparagraph, so exposure is not necessarily limited to the contracting entity.