The days when a small business could ignore the risks of having misclassified workers are over. Unfortunately, some employers improperly classify their employees as independent contractors to avoid the pain associated with having employees, namely:
- Payroll taxes
- Minimum wage or overtime requirements
- Other wage and hour law requirements, like providing meal periods and rest breaks
- Reimbursable business expenses employees incur in performing their jobs
Additionally, employers don’t have to cover independent contractors under workers’ compensation insurance, and are not liable for payments under unemployment insurance, disability insurance, or social security.
It’s true, the expenses associated with employees are high. However, the cost of misclassifying workers is even higher. If your contractors are determined to really be employees you will not only be required to pay the taxes and fees you should’ve, you may also be required to pay the employee’s taxes as well. Not to mention the stiff penalties and interest that can be imposed by both federal and state agencies for violating the various laws.
This is no small matter and is on the radar of every government agency out there, all of whom are anxious to find additional revenue sources these days. The IRS estimates that one in seven U.S. employers is guilty of misclassifying some of its employees, resulting in a loss of more than $4.1 billion a year in tax revenues. These days the question is no longer “if” you’ll get audited for employee misclassification it’s “when”.
For businesses facing an audit, the odds favor the IRS. A recent report found that 92 percent of the companies audited for “misclassification” were hit with significant penalties and assessed for back taxes. Between 1988 and 1995, the IRS audited more than 13,000 businesses, reclassified 500,000 of their independent contractors as employees, and levied $830 million in back taxes and penalties.
Making matters worse, sometimes the various agencies disagree. For instance, here in California there are several state agencies involved with the determination of independent contractor status: (1) the Employment Development Department (EDD), which is concerned with employment-related taxes, (2) the Division of Labor Standards Enforcement (DLSE), which is concerned with whether the wage, hour and workers’ compensation insurance laws apply; (3) the Franchise Tax Board (FTB), which is concerned with state income taxes; (4) the Division of Workers’ Compensation (DWC), which is concerend with worker’s compensation; and (5) sometimes even the Contractors State Licensing Board (CSLB), that also have regulations or requirements concerning independent contractors and it’s not uncommon for one to rule that a worker is an employee while another rules that the same worker is an independent contractor.
Because the potential liabilities and penalties are so significant if an individual is treated as an independent contractor and later found to be an employee, each individual working relationship needs to be thoroughly analyzed to make sure every single worker is properly classified. Now is not the time to group classes of employees together. Just because one of your workers qualifies as an independent contractor, don’t assume that all the others doing similar work will.
It all boils down to control – does your business have control or the right to control the worker both as to the work done and the manner and means in which it is performed? The IRS breaks control down into three categories: behavioral control, financial control, and relationship of the parties. It is very important to consider all the facts for every single one of your worker relationships – no single fact provides the answer.
Behavioral Control
These facts show whether there is a right to direct or control how the worker does the work.
- Instructions – if your business has the right to direct or control the work, even if you don’t actually exercise the right, it can lead to an employee classification. Here are a few examples of what’s considered control:
- how, when, or where to do the work
- what tools or equipment to use
- what assistants to hire to help with the work
- where to purchase supplies and services
- Training – if your business provides training about required procedures and methods it may be considered an indication that the business wants the work done in a certain way, which can lead to an employee classification
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