Employee vs. Contractor: How to Classify Workers In India (Quiz Included) [2024]
When hiring workers in India, it's crucial to classify them correctly—otherwise, you risk significant penalties.
Indian authorities can crack down on the misclassification of workers, and order companies to pay millions of INR in back taxes and fines.
Misclassification is also damaging for workers: it cheats employees out of social security benefits and protections they're entitled to under Indian law, such as minimum wage, overtime pay, vacation pay, and employment insurance benefits. This has a negative impact on the company’s reputation, too.
Learn about how to classify your workers correctly—and stay compliant with Indian labor and employment laws—in this guide.
Classifying workers in India
As in many countries, India categorizes employees and contractors differently—and classifying them correctly can be the difference between smoothly running your global team and racking up huge fines and penalties (more on those below).
What is an employee in India?
In India, an employee is defined as an individual who works for an employer in return for wages or other remuneration. Employees are defined by various federal and provincial laws, but the most important distinction is that India's robust worker protection laws always apply to employees—meaning they're always entitled to statutory benefits, including:
- Employees’ Provident Fund contributions
- Vacation pay
- Holiday pay
- Sick leave
- Maternity leave
What is a contractor in India?
In India, an independent contractor is defined as an individual who provides services to a business or organization, but who is not an employee of that business or organization. Independent contractors are also known as self-employed individuals, consultants, or freelancers. India also has “contract workers,” who are either subcontracted by independent contractors or work indirectly for a company on a short-term basis.
Independent contractors in India include:
- Gig workers. People who work jobs that are hourly, part-time, or temporary (e.g. a freelance writer or adjunct professor).
- Platform workers. People who work for companies that provide services to consumers from an online platform (e.g. Uber drivers).
Worker classification overview: Employees vs contractors in India
The Indian government uses certain criteria to define the employment relationship—and whether it's an employer-employee relationship or an employer-independent contractor relationship.
Below are the main factors.
Contractors
Employees
High level of worker control. Contractors are generally given more autonomy to determine how to complete the work and when to do it.
More direction from the employer. Employees are generally subject to more control and direction from their employer, who will provide guidance on how to perform the work and may set specific hours of work.
Equipment and tools are owned by the worker.
Equipment and tools are typically provided by the company.
Less integrated. Contractors tend to be independent, they’re more likely to work remotely, and they use their own tools and equipment.
Highly integrated. Employees are typically more integrated into the employer's organization, for example, they may work at the employer's premises.
No entitlement to benefits. Contractors are not entitled to the same benefits and protections as employees, and they are responsible for paying their own income taxes.
Entitled to benefits. Employees are entitled to certain employment benefits and protections, such as minimum wage, overtime pay, and vacation pay. They may also be entitled to benefits like health insurance, retirement plans, and paid sick leave.
Time-bound engagement. Contractors are typically engaged for a specific project or period of time.
Indefinite engagement. Employees are generally hired for an indefinite period of time.
Limited disciplinary action. Apart from terminating the contract, companies can’t take action against contractors for misconduct.
Disciplinary action. With just cause, companies can take action against employees for misconduct.
Non-exclusive services. Contractors cannot be contractually bound to a single company; they can provide their services to more than one organization.
Exclusive services. Employees can be contractually bound to provide services to just one company.
Tests to classify workers in India
If you want to classify workers yourself, Indian courts have used a series of "tests," to gauge the type of work that distinguishes hiring employees from hiring independent contractors.
Keep in mind that in a dispute, authorities look at all aspects of the working relationship, and no single test should be considered conclusive for classifying a worker.
- Control test. This test evaluates the amount of control the employer has over the worker.
- Integration test. This test determines whether a worker is involved in day-to-day business operations or independent of it. Employees are generally more integral to a company.
- Dismissal. Employees are entitled to termination proceedings, whereas contractors can be dismissed for violating the terms of their agreement.
Indian labor law also places certain limitations on companies that hire contractors. The Contract Labor (Regulation and Abolition) Act, for instance, doesn’t allow for contractors to be hired for jobs that are “perennial in nature,” meaning contractors can only work jobs that are set to expire within a fixed time period.
Penalties for misclassifying workers in India
Businesses found to have misclassified employees as contractors in India face serious financial risk. Potential penalties include:
- Back pay
- Back taxes on entitlements
- Government fines
- Loss of intellectual property rights
- Loss of business license
- Jail time
There's more than just the financial risk. Companies found misclassifying workers can suffer other consequences, such as legal disputes, reputational damage, difficulty recruiting new workers, negative impact on employee morale, and increased scrutiny from government agencies.
Indian authorities are motivated to audit and investigate businesses they suspect are misclassifying workers so they can increase their tax revenue. Employee misclassification, whether accidental or intentional, is risky and potentially very costly.
Disclaimer: Rippling and its affiliates do not provide tax, accounting, or legal advice. This material has been prepared for informational purposes only, and is not intended to provide or be relied on for tax, accounting, or legal advice. You should consult your own tax, accounting, and legal advisors before engaging in any related activities or transactions.
