EIC96-2 Volume 12 Issue 2
Treatment of Independent Contractors for Retirement Purposes
This circular is intended to provide some preliminary information regarding the treatment of independent contractors for retirement purposes as a result of AB-948 which was enacted by the Legislature during the 1995 legislative session. An Administrative Directive (AD) will be issued in the near future to provide employers with a more detailed discussion of the implementation issues.
The most significant implementation issues of which employers should be aware include the following:
- AB-948 repealed and added Section 24214 of the Teachers’ Retirement Law (TRL) regarding the post-retirement earnings limitation and established provisions for exemptions from the earnings limitation to be granted under limited, specified conditions in accordance with Section 24216 of the TRL.
- AB-948 also added Section 22119.5 to the TRL to provide a definition of “creditable service”for purposes of applying the earnings limitation. The provisions of the bill are retroactive to July 1, 1995.
- Earnings from creditable service performed on and after July 1, 1995, by a STRS member who is retired for service are subject to the earnings limitation regardless of whether the service is performed as an employee of the employer, as an employee of a third party, or as an independent contractor.
- A person who is not a STRS member and who performs creditable service is subject to the mandatory STRS membership requirements unless such service is performed as an independent contractor. STRS will rely on the employer’s responsibility to comply with the Internal Revenue Service (IRS) requirements in determining independent contractor status.
If the employer subsequently alters the status of the individual from that of independent contractor to employee (for instance, pursuant to an IRS finding) STRS will apply the mandatory membership requirements on a prospective basis.
- Pending cases involving independent contractor issues will be reviewed and resolved on a case-by-case basis to ensure the criteria are appropriately and consistently applied.
For additional information regarding AB-948 and the post-retirement earnings limitation, please refer to the Employer Information Circular numbered Volume 11, Issue 12, dated September 28, 1995. If you have any questions regarding the information in this circular, or on other aspects of the independent contractor issue, please contact the Reporting Section Manager, Al Ray, at (916) 229-3261.
Employer Information Circulars [EIC] are sent to school district and community college employers as informal guidance that provides immediate information on a single topic.
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Sacramento, CA 95851