Independent contractor is indeed a completely different ball of wax, so employment law does not apply. It’s more like the pastor is a business and your church is a customer. So assuming this arrangement satisifes the IRS as a true independent contractor, the church is free to decide who to contract with.
On the convenience store example, I dunno if they can post the sign (some localities would no doubt find a way to make them take it down as offensive, disruptive to the peace, etc.), but federal law would not protect the applicants who are discriminated against based on race and religion by such a small business. Your example is extreme, but in real life it is more likely to be the owner of a small shop being free to hire friends and family, and if that process is not blind to race and religion, the government is not going to fight it.
Well, if that makes it different, couldn’t a racist own a business with 1,000 employees, but instead of hiring them and calling them “employees” they could all be indepedent contractors that he hires and is then free to choose only blue-eyed white people, or white-eyed blue people as he chooses?
It seems like this is a loophole that every business could use to get around the civil rights laws.
I mean, as a consumer, I’m not bound by any racial restrictions, right? If I am looking for a plumber to service my home water system, I can tell everyone that I only want Chinese (or insert other race here) plumbers, don’t send me any other race, I only want Chinese plumbers and if you can’t provide one, then I’m going with another company.
I realize that a business may tell me that they can’t do that, but I’m not on the hook for any violation of any law for asking for it, right? Right???
The IRS would not believe that much longer than it would take to say “levy”. Once the IRS slapped you back into reality, your staff would look mighty questionable to the courts in a racial discrimination case.
Essentially, what **drachillix ** said. There are criteria the IRS uses to determine if someone is really an independent contractor. It’s not just “because the employer says so.”
Even assuming the criteria for independent contractor are met to the IRS’s satisfaction, there are still practical reasons not to do what you suggest.
Independent contractors have significant discretion in how the work gets done. It’s not often realistic to run a large, coordinated business of 1,000 independent contractors. An employer doesn’t have managerial control over them. For example, Mary Kay beauty consultants are independent contractors. It works well for that role in that business. But clearly not every business can give its workers that kind of leeway to accomplish the job.
Also, it is only a subset of the working population that is interested in working as an independent contractor. Independent contractors have many of the risks and hassles of running a business.
I’d agree with you that there is some potential for abuse of independent contracting to get around employment laws, but it’s not a complete free-for-all, either.
Actually, clergy are subject to some unique tax provisions, which the IRS summarizes here and discussed in detail here. The IRS says that clergy are given W-2s like employees, but do not have social security taxes taken out like independent contractors.
Also, although many federal anti-discrimination laws are limited to businesses with 15 employees (and virtually any business will be considered to affect interstate commerce), many states have laws that apply to all businesses. Also, many states have more protected classes (e.g. sexual orientation) than under federal law.
Is the less than 15 employees why Chinese (and other ethnic resturants) often have only the same ethnic people working there. I mean you mostly see all Chinese people working at Chinese resturants. I always assumed because most were family operations they cut costs by using families.
I recall I hired a 18 year old Thai girl and she was so happy as she said “now I don’t have to work in my father’s resturant for free.” LOL Now she not only works in a company but on weekends and after her job here her father makes her work in the resturaunt for free
