General Information Only. This article is for general informational purposes and does not constitute legal advice. Laws may have changed since publication. Your situation may differ; consult a licensed Virginia attorney about your specific matter.
The information in this article is for general informational purposes only and does not constitute legal advice. Laws change and individual circumstances vary. Consult a licensed Virginia attorney about your specific situation. Reading this article does not create an attorney-client relationship nor does merely contacting our office through this website or any other means.
You pay your turnover cleaner by the job, send a 1099 in January, and think of her as a contractor. Nothing about that arrangement feels like a legal question.
Virginia starts from the opposite assumption, and has since 2020. The Commonwealth presumes that a person you pay to perform services is your employee, which means you do not start this argument from neutral. You start it a step behind. That is a small change in wording with a fairly large change in consequence, and it is worth understanding before anyone else raises it.
The Presumption Runs Against You
Va. Code § 40.1-28.7:7 is titled “Misclassification of workers,” and it reverses the default most owners operate under.
Under the section, “an individual who performs services for a person for remuneration shall be presumed to be an employee” unless it is shown that the individual is an independent contractor. The person paying is presumed to be the employer.
The presumption is rebuttable. Notice where it puts you anyway. You are not starting from a blank page and arguing about the nature of a relationship. You are establishing contractor status affirmatively, against a statutory assumption that it is not.
The section was enacted in 2020 and took effect on July 1 of that year. It has been amended since, most recently in 2026, so the current text is worth checking rather than taking from any summary, this one included.
The Standard It Points To
Section 40.1-28.7:7 does not invent a Virginia-specific test. It determines independent contractor status by reference to Internal Revenue Service guidelines, common law doctrine, and the associated federal regulations.
Under the IRS common law approach, evidence of the degree of control and independence falls into three categories.
Behavioral control asks whether the business controls or has the right to control “what the worker does and how the worker does his or her job.”
Financial control asks whether the business aspects of the worker’s job are controlled by the payer, including how the worker is paid, whether expenses are reimbursed, and who provides tools and supplies.
Type of relationship asks whether there are written contracts or employee-type benefits, whether the relationship will continue, and whether “the work performed is a key aspect of the business.”
The IRS is explicit that there is no formula and no magic number of factors. The core question is stated simply: “What matters is that you have the right to control the details of how the services are performed.”
Two of those points land awkwardly for a rental operation, and it is better to notice that yourself than to have it pointed out.
If you supply the vacuum, the linens, and the cleaning products, that is financial control pointing toward employment. And if you run short-term rentals, turnover cleaning is not incidental to what you do. It is close to the center of it, which is precisely what the “key aspect of the business” factor is asking about.
What It Costs to Get Wrong
Two separate exposures, from two separate chapters of the Code.
A private lawsuit. Section 40.1-28.7:7 gives a misclassified individual a civil action where the employer had knowledge of the misclassification. The employer “shall be liable to the aggrieved individual for the applicable remedies, damages, or other relief” available under subsection K of § 40.1-29, and the action must be commenced within three years after the cause of action accrues.
Civil penalties. Under Va. Code § 58.1-1901, an employer that fails to properly classify an individual as an employee is subject, on notice from the Department, to a civil penalty of “up to $1,000 per misclassified individual for a first offense, up to $2,500 per misclassified individual for a second offense, and up to $5,000 per misclassified individual for a third or subsequent offense.”
Read “per misclassified individual” carefully. An operator with a crew of six is not looking at one penalty.
These sit alongside the ordinary consequences of getting employment status wrong, including unpaid payroll taxes and workers’ compensation questions, which are their own subject.
The Three Roles Owners Get Wrong
The turnover cleaner. The highest-risk relationship, because it usually has every marker pointing the same unhelpful direction. You set the schedule, you specify the checklist, you supply the products, the work is continuous, and it is central to your business.
Compare that to a cleaner who runs her own company, serves many owners, sets her own methods, brings her own equipment, and prices her own work. That is a different picture entirely. Which one describes yours is a factual question, and answering it honestly on your own time is considerably more comfortable than answering it on someone else’s.
The handyman. Usually the easier case for contractor status. The work is project-based, the trade supplies its own tools and methods, and the relationship is intermittent. It gets harder as it becomes a standing weekly commitment with you directing the work.
The co-host. The least examined and the most complicated, because it can raise two questions at once. Classification is the first. The second is whether renting property for others for compensation places the person inside Virginia’s real estate broker licensing definition. A co-host arrangement can be a classification problem, a licensing problem, or both, and the arrangement itself is worth writing down for reasons beyond either.
The Questions Worth Sitting With
- For each person who works on your properties, write down who sets the schedule, who supplies the equipment, who decides the method, and how continuous the work is. That list is the analysis, and it costs you twenty minutes.
- Are you supplying tools and consumables to someone you treat as a contractor? If so, that fact points one way whether or not you like where.
- Does this person serve other clients, and can they turn your work down? If neither is true, the presumption is doing real work against you.
- Does your written arrangement describe what actually happens, or what you would prefer were happening?
- If you have several people across multiple properties and have never run this analysis, how many penalties would “per misclassified individual” mean?
Classification depends on the whole relationship rather than on any one factor, and a contract calling someone a contractor does not settle it. If the honest answers above have you uncertain, that is a contained question for a Virginia attorney and a much better one to raise before an audit or a claim than after.
This article is general information only and is not legal advice. Laws change and individual circumstances vary, and outcomes depend on the specific facts of each situation. Do not rely on this article to make decisions about your specific situation; contact Valley Legal or a licensed Virginia attorney to discuss your case. Reading this article does not create an attorney-client relationship, nor does contacting our office through this website or any other means. Attorney advertising.
Valley Legal, PLLC is located at 107 Pepper St SE, Christiansburg, Virginia 24073, and serves the communities of the New River Valley of Virginia, including Montgomery County, Blacksburg, Radford, Pulaski County, Floyd County, and Giles County.