West Virginia Independent Contractor Agreement Template

Q: What makes a West Virginia independent contractor agreement different?

In most states the agreement supports a classification that is decided on the facts. In West Virginia the signed agreement is itself the first element of the statutory test. W. Va. Code 21-5I-4(a)(1) requires a written contract, signed by the worker, that states the principal's intent to engage the person as an independent contractor and contains five specific acknowledgements. Without it the statutory route to contractor status is closed before the control analysis begins.

Q: What five acknowledgements does West Virginia require in the contract?

That the person understands he or she is providing services as an independent contractor; will not be treated as an employee; will not be provided workers' compensation benefits or unemployment compensation benefits; is obligated to pay all applicable federal and state income taxes on payments under the contract, with no withholding by the principal; and is responsible for the majority of supplies and other variable expenses, other than expenses for travel that is not local, expenses the principal expressly agrees to reimburse, and expenses commonly reimbursed under industry practice.

Q: Is an oral independent contractor arrangement valid in West Virginia?

It may still be an enforceable services contract, but it cannot produce independent contractor status under the statutory test. W. Va. Code 21-5I-4(a)(1) requires a signed writing in substantial compliance with the subsection. Where that element fails, the classification falls back to the twenty factor common law analysis in Internal Revenue Service Revenue Ruling 87-41, which is a facts and circumstances inquiry with no safe harbor.

Q: Does the same test apply to workers' compensation and unemployment in West Virginia?

Yes, and that is the point of the 2021 act. Workers' compensation adopts the test at W. Va. Code 23-2-1a(a), unemployment compensation at W. Va. Code 21A-1A-16(7), and wage payment and collection at W. Va. Code 21-5-1(b), each by express cross reference to W. Va. Code 21-5I-4. W. Va. Code 21-5I-3 adds that conflicting provisions of those chapters, along with the Human Rights Act, are superseded to the extent necessary.

Q: What are the other elements besides the written contract?

The person must also file business or self-employment income tax returns for the work or operate through a business entity, must have actual and direct control over the manner and means by which the services are performed, and must satisfy at least three of nine further criteria listed in W. Va. Code 21-5I-4. Because the last element is scored rather than weighed, it is worth identifying at the outset which three apply and keeping records that support them.

Q: Does clearing the West Virginia test protect a business from liability for a contractor's acts?

No. W. Va. Code 21-5I-5 states that the test has no application to other areas of law, such as whether a person is an independent contractor or an agent of a principal for determining whether the law of principal and agent applies to questions like vicarious liability to a third party in tort. Those questions are still decided under ordinary agency principles, so insurance and indemnity terms remain worth negotiating on their own merits.

Q: Does the West Virginia test cover minimum wage and overtime claims?

The article names the laws it reaches, and they are workers' compensation, unemployment compensation, the Human Rights Act, and wage payment and collection under article 5 of chapter 21. Minimum wage and maximum hours sit in a separate article, chapter 21 article 5C, which is not on that list. Treat a favorable classification under the uniform test as unresolved for minimum wage and overtime purposes rather than assuming it carries across.

Q: What does substantial compliance mean for the acknowledgements?

The statute asks for a contract in substantial compliance with the terms of the subsection, which suggests the acknowledgements do not have to be reproduced word for word so long as each of the five points is genuinely and clearly made. The practical approach is to track the statutory language closely and keep the five items separately itemized rather than blended into a general status paragraph, so that each acknowledgement is visible on the face of the document.

Q: Can a worker still challenge the classification after signing?

Yes. Signing the contract satisfies one element of a multi part test; it does not resolve the others, and the acknowledgements cannot make true something the working relationship contradicts. Each of the statutes that adopts the test starts from employee status and treats independent contractor status as the exception, so the hiring party carries the burden. Where an engagement is significant or long running, attorney review is an option.

West Virginia legislated its way out of test shopping: one classification test for four different laws, and it cannot be met without a signed contract carrying five prescribed acknowledgements.

Find out where you stand in West Virginia

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. In most states the document is evidence: it records the parties' intent and supports a classification that a court or agency will decide on the facts. West Virginia is the opposite case. The 2021 Employment Law Worker Classification Act supplies a single classification test at W. Va. Code 21-5I-4, and the very first element of that test is a signed written contract stating the principal's intent to engage the person as an independent contractor and containing five specific acknowledgements. No signed contract with those acknowledgements, no independent contractor status. The other unusual feature is uniformity. Where most states let a worker come out a contractor under one act and an employee under another, West Virginia has workers' compensation, unemployment compensation, the Human Rights Act, and wage payment and collection all cross reference the same section by number, and W. Va. Code 21-5I-3 supersedes conflicting provisions of those chapters to the extent necessary. One test, one answer, and one document that has to carry it.

Key Things to Know

1
The contract is an element of the test, not evidence about it. W. Va. Code 21-5I-4(a)(1) requires that the person sign a written contract with the principal, in substantial compliance with the terms of that subsection, stating the principal's intent to engage the services of the person as an independent contractor. Where that writing is missing, the analysis does not reach the control question or the remaining criteria at all.
2
Five acknowledgements have to be in the writing. The contract must contain acknowledgements that the person understands he or she is providing services as an independent contractor; will not be treated as an employee; will not be provided workers' compensation or unemployment compensation benefits; is obligated to pay all applicable federal and state income taxes with no withholding by the principal; and is responsible for the majority of supplies and other variable expenses, subject to stated exceptions.
3
The expense acknowledgement has three built in exceptions, and they are worth using. Responsibility for the majority of supplies and other variable expenses does not have to cover expenses relating to travel that is not local, expenses the principal expressly agrees to reimburse, or expenses commonly reimbursed under industry practice. A contract that reimburses ordinary local supplies, by contrast, undercuts the acknowledgement it just made.
4
Beyond the writing there are three more elements. The test at W. Va. Code 21-5I-4 also asks for tax filing or business entity status, for actual and direct control over the manner and means of performing the services, and for at least three of nine further criteria listed in the section. Where the statutory route is not satisfied, the fallback is the twenty factor common law analysis in Internal Revenue Service Revenue Ruling 87-41.
5
The same test governs four bodies of law by cross reference. Unemployment compensation adopts it at W. Va. Code 21A-1A-16(7), workers' compensation at W. Va. Code 23-2-1a(a), and wage payment and collection at W. Va. Code 21-5-1(b), which defines employee to include any person suffered or permitted to work except those classified as an independent contractor pursuant to W. Va. Code 21-5I-4. W. Va. Code 21-5I-3 also names the Human Rights Act and supersedes conflicting law in those chapters to the extent necessary.
6
The uniform test is walled off from tort. W. Va. Code 21-5I-5 provides that the test has no application to other areas of law, such as whether a person is an independent contractor or an agent of a principal for determining whether the law of principal and agent applies to questions like vicarious liability to a third party in tort. A business that clears the statutory test has not thereby limited its exposure for a contractor's negligence toward a third party, and transportation network companies governed by W. Va. Code 17-29-11 are handled separately.
7
One area sits outside the enumerated list. The laws that W. Va. Code 21-5I-3 and 21-5I-5 name are workers' compensation in chapter 23, unemployment compensation in chapter 21A, the Human Rights Act, and wage payment and collection in article 5 of chapter 21. The minimum wage and maximum hours article, W. Va. Code chapter 21 article 5C, is a separate article and is not among them, so do not assume a favorable classification under the uniform test resolves a minimum wage or overtime question.

Key decisions before you file

Before you file a Independent Contractor Agreement in West Virginia, 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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West Virginia Independent Contractor Agreement (Compact State Terms)

This is the West Virginia layer only. Scope, fees, ownership of work product, confidentiality, indemnity, term and termination, and the general mechanics sit in the main body of the Independent Contractor Agreement. The clauses below are not optional polish: without a signed writing carrying them, the statutory test cannot be satisfied at all.

A. Statutory acknowledgements (W. Va. Code 21-5I-4(a)(1)). Company enters this Agreement with the intent to engage Contractor's services as an independent contractor. By signing, Contractor acknowledges that Contractor understands that Contractor:

(A) is providing services to Company as an independent contractor;

(B) will not be treated as an employee of Company for any purpose;

(D) is obligated to pay all applicable federal and state income taxes on amounts paid under this Agreement, and Company will make no withholding on Contractor's behalf; and

(E) is responsible for the majority of the supplies and other variable expenses incurred in performing the Services, other than expenses relating to travel that is not local, expenses Company has expressly agreed in writing to reimburse, and expenses that are commonly reimbursed under industry practice.

B. Control of manner and means. Contractor has actual and direct control over the manner and means by which the Services are performed. Company may specify the result and the date it is due, and may inspect the finished work, but does not direct methods, sequence, or hours.

C. Business and filing status. Contractor files or will file business or self-employment income tax returns for the Services, or performs the Services through a business entity. Contractor's entity or filing details are ______.

D. The remaining criteria. W. Va. Code 21-5I-4 also requires that at least three of the nine further criteria listed in that section be met. Confirm which three apply to this engagement and keep records supporting them, since the statute is scored, not weighed.

E. One test, several statutes. The classification reached under W. Va. Code 21-5I-4 is the same one used for workers' compensation under W. Va. Code 23-2-1a(a), for unemployment compensation under W. Va. Code 21A-1A-16(7), and for wage payment and collection under W. Va. Code 21-5-1(b). W. Va. Code 21-5I-3 provides that conflicting provisions of those chapters are superseded to the extent necessary.

F. What the test does not reach. W. Va. Code 21-5I-5 provides that the test has no application to other areas of law, including whether a person is an agent of a principal for purposes such as vicarious liability to a third party in tort. Nothing in this Section limits either party's obligations to third parties.

G. Signature. Contractor must sign this Agreement. An unsigned or oral engagement cannot satisfy W. Va. Code 21-5I-4(a)(1), whatever the working relationship looks like in practice.

Contractor: ______________________________ Date: ____________

Company: ______________________________ Date: ____________

General information, not legal advice; attorney review is available.

West Virginia Requirements for Independent Contractor Agreement

West Virginia Signed Written Contract Is an Element of the Test (W. Va. Code 21-5I-4(a)(1))
Independent contractor status under the uniform test is unavailable unless the person signs a written contract with the principal, in substantial compliance with the terms of the subsection, that states the principal's intent to engage the services of the person as an independent contractor. This is a gating element rather than evidence, so an unsigned or purely oral engagement forecloses the statutory route regardless of how the relationship actually operates.
West Virginia Five Prescribed Acknowledgements (W. Va. Code 21-5I-4(a)(1)(A) to (E))
The contract must contain acknowledgements that the person understands he or she is: providing services as an independent contractor; not going to be treated as an employee; not going to be provided workers' compensation or unemployment compensation benefits; obligated to pay all applicable federal and state income taxes with no withholding by the principal; and responsible for the majority of supplies and other variable expenses, subject to stated exceptions for travel that is not local, expressly reimbursed expenses, and expenses commonly reimbursed under industry practice.
West Virginia Control, Tax Status, and Three of Nine Criteria (W. Va. Code 21-5I-4)
Alongside the signed contract, the test requires that the person file business or self-employment income tax returns for the work or operate through a business entity, that the person have actual and direct control over the manner and means of performing the services, and that at least three of nine further criteria set out in the section be satisfied. Where the statutory route is not met, classification falls back to the common law analysis in Internal Revenue Service Revenue Ruling 87-41.
West Virginia Unemployment Compensation Adopts the Uniform Test (W. Va. Code 21A-1A-16(7))
Services performed by an individual for wages are employment subject to chapter 21A unless and until it is shown to the satisfaction of the commissioner that the individual is classified as an independent contractor pursuant to W. Va. Code 21-5I-4. The starting position is employment and the burden of showing the statutory classification rests on the employing unit.
West Virginia Workers' Compensation Adopts the Uniform Test (W. Va. Code 23-2-1a(a))
Employees subject to chapter 23 are all persons in the service of employers except those classified as an independent contractor pursuant to W. Va. Code 21-5I-4, employed for the purpose of carrying on the industry, business, service, or work in which the employer is engaged. The 2021 amendment replaced the earlier workers' compensation control test case law with this single statutory safe harbor.
West Virginia Wage Payment and Collection Adopts the Uniform Test (W. Va. Code 21-5-1(b))
The term employee includes any person suffered or permitted to work by a person, firm, or corporation, except those classified as an independent contractor pursuant to W. Va. Code 21-5I-4. That is the broadest possible definition of employee narrowed by a single statutory exception, so a business relying on contractor status for wage payment purposes needs the same signed contract and the same elements.
West Virginia Supersession of Conflicting Classification Law (W. Va. Code 21-5I-3)
All laws concerning workers' compensation in chapter 23, unemployment compensation in chapter 21A, Human Rights Act rights, and wage payment and collection in article 5 of chapter 21, where their application is contingent on the classification of a worker as an employee, are superseded to the extent necessary by the article. This is what eliminates test shopping across acts within the state.
West Virginia Test Does Not Reach Tort and Agency Questions (W. Va. Code 21-5I-5)
The test has no application to other areas of law, such as whether a person is an independent contractor or an agent of a principal for determining whether the law of principal and agent applies with respect to questions such as vicarious liability to a third party in tort. Transportation network companies governed by W. Va. Code 17-29-11 are also excepted, so platform operators should work from that section instead.
West Virginia Minimum Wage Article Is Not in the Enumerated Scope (W. Va. Code chapter 21 article 5C)
The laws that W. Va. Code 21-5I-3 and 21-5I-5 name are workers' compensation, unemployment compensation, the Human Rights Act, and wage payment and collection under article 5 of chapter 21. The Minimum Wage and Maximum Hours Standards are a separate article and do not appear on that list, so a classification that satisfies the uniform test should not be assumed to resolve a minimum wage or overtime claim.

Frequently Asked Questions

What makes a West Virginia independent contractor agreement different?

What five acknowledgements does West Virginia require in the contract?

Is an oral independent contractor arrangement valid in West Virginia?

Does the same test apply to workers' compensation and unemployment in West Virginia?

What are the other elements besides the written contract?

Does clearing the West Virginia test protect a business from liability for a contractor's acts?

Does the West Virginia test cover minimum wage and overtime claims?

What does substantial compliance mean for the acknowledgements?

Can a worker still challenge the classification after signing?

Find out where you stand in West Virginia

Introduction

Key Things to Know

Key decisions before you file

Customize your Independent Contractor Agreement Template with DocDraft

West Virginia Independent Contractor Agreement (Compact State Terms)

West Virginia Requirements for Independent Contractor Agreement

West Virginia Signed Written Contract Is an Element of the Test (W. Va. Code 21-5I-4(a)(1))

West Virginia Five Prescribed Acknowledgements (W. Va. Code 21-5I-4(a)(1)(A) to (E))

West Virginia Control, Tax Status, and Three of Nine Criteria (W. Va. Code 21-5I-4)

West Virginia Unemployment Compensation Adopts the Uniform Test (W. Va. Code 21A-1A-16(7))

West Virginia Workers' Compensation Adopts the Uniform Test (W. Va. Code 23-2-1a(a))

West Virginia Wage Payment and Collection Adopts the Uniform Test (W. Va. Code 21-5-1(b))

West Virginia Supersession of Conflicting Classification Law (W. Va. Code 21-5I-3)

West Virginia Test Does Not Reach Tort and Agency Questions (W. Va. Code 21-5I-5)

West Virginia Minimum Wage Article Is Not in the Enumerated Scope (W. Va. Code chapter 21 article 5C)

Frequently Asked Questions