Employee Or Independent Contractor: The Consequences Of Misclassification
Andy Scheu • Jun 20, 2019

Independent Contractor or Employee?


When classifying a worker as an independent contractor or employee, employers should consider the following factors:

  1. Does the company have the right to control what and how the worker does the job?
  2. Does the company control how the worker is paid or reimbursed?
  3. Are they paid hourly or a salary?
  4. Does the company provide supplies or tools used by the worker?
  5. Is there a written contract or employee benefits?
  6. Will the relationship continue after a job is completed?

The more control over a worker an employer has, the more likely that individual should be classified as an employee.


Why Employers Misclassify?


The misclassification of employees as independent contractors is not uncommon, and definitely nothing new. Employers do this in order to avoid matching FICA taxes, save on workers compensation premiums, and reduce their overall labor and administration costs.


It seems harmless enough as long as there is a mutual “understanding”, and can even go unpunished, but the potential consequences can have a devastating effect on a business if the IRS or DOL find a violation of the rules.


The Consequences


If misclassification occurs, an employer will owe up to three years of back taxes on the misclassified employee’s wages, in addition to fines and interest. They will also owe back unemployment and workers’ compensation insurance, and possibly owe premiums on other state-run insurance programs, such as paid family leave. There will be additional back pay and penalties owed to the employee if an employer did not meet minimum wage or overtime requirements.


If you are concerned that you may have misclassified an employee as an independent contractor, don’t panic! Time & Pay can help make sure you stay compliant with IRS and Department of Labor regulations, and help reduce any red flags that could trigger an unexpected audit. Contact us today for a free consultation!




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By Andy Scheu 25 Mar, 2024
What’s New? Does your organization encourage annual W4 reviews? Each year, employers are forced to have tough conversations with employees that owe more taxes than expected after they file their return. While the employer is responsible for withholding and filing payroll taxes on their employee’s behalf, it is up to the employee to determine how much federal income tax is withheld from their wages. It is also the employee’s responsibility to make sure enough income tax is being withheld to cover their annual tax burden. What Should You Do? The amount of federal income taxes withheld from employee wages is determined by how they fill out their W4 . All employees are required to complete a W4 during the initial onboarding process, but very few review and make adjustments. For this reason, we recommend that employers actively encourage their employees to take these steps each year: Use the IRS tax calculator to get an idea of what tax liabilities will be for the year. Review check stubs to make sure enough federal and state income taxes are being withheld. Submit a new W4 if income tax withholdings are insufficient. Employers should also encourage employees to submit a new W4 if they: Experience a life-changing event (marriage, children, divorce, etc.). Add another source of income (2nd job, “side hustle”, contract work, etc.) Have had to pay additional taxes after filing their annual return for previous year. How Can Time & Pay Help  Detailed Check Stubs: Time & Pay provides detailed earning statements for all employees we process payroll for. Paychecks that we produce include a check stub that shows all wages, deductions, and taxes withheld on the current payroll, as well as year-to-date totals. If your employee isn’t receiving a paper check, check stubs are sent via mail, or electronically to the employer to distribute. If the client is a Payentry subscriber, check stubs are available online through an employee self-service portal, as well as details about how their withholding status is currently set up. There is also a mobile app available on Apple and Android devices that give employees access anywhere they have internet access.
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By Andy Scheu 21 Feb, 2024
What’s New? The IRS uses a 20 factor test when considering whether a worker is an employee or independent contractor. With a new final rule set to go into effect on March 11, 2024, it’s a good time to review these factors, as well as how workers are classified within your organization. What are the 20 Factors? When considering whether a worker is an employee or independent contractor, you should ask yourself these questions: Instructions – Do we provide instructions on when, where, how to do the work? Training – Do we train the worker? Subcontracting – Can the worker subcontract part of the work, or does the worker have to perform the work? Control of Workforce – Is the worker allowed to hire and terminate their own workers? Length of Employment – how long will the worker be expected to work for us? Schedule – Did we set the schedule? Full Time Work – Are they working full-time for us? Order or sequence – Do we require the work to be done in a specific order or sequence? Work on premise – Does the work have to be done at our office or work space? Reports – Do we require the worker to provide reports and status updates? Pay – Do we pay the worker by the hour, week, month, or job? Expenses – Are we paying or reimbursing the worker for expenses? Tools and Materials – Do we provide tools to the worker? Investment – Does the worker have investment in the essential tools and/or facilities where work is performed? Profit / Loss – Can the worker suffer a profit or loss on the job depending on their performance? Integration – Is the worker doing work that is vital to our operation? Exclusivity – Does the worker perform work for more than one company at a time? Availability – Does worker make their services available to the general public? Termination – Can our company fire the worker without liability? Resignation – Can the worker quit without liability? Overview:  All 20 factors are related to these 3 items: Behavioral Control – Does the company have the right to control how the worker performs their services? Financial Control – Are the business aspects of the worker’s services controlled by the company? Relationship of the Parties – Is the relationship between the worker and the company defined in legal documents? Does the company provide insurance for the worker? Are the worker’s services a vital part of the company’s operations? Fines and penalties assessed due to misclassification of workers could be devastating for businesses. Time & Pay clients have access to complimentary consultations through SESCO HR Management . If you have questions or concerns about how certain workers in your organization are classified, contact us today!
A man is pressing a button on a screen that says hr.
By Andy Scheu 20 Feb, 2024
What’s New? On January 10th, 2024 the Department of Labor announced a final rule that will be used when determining whether a worker should be classified as an employee or independent contractor. The new rule will replace the previous rule established in 2021, and is set to go into effect on March 11th, 2024. What is the New Rule? The new rule restores a standard of analysis that helps ensure that all relevant factors are considered when determining how a worker should be classified. There are six primary factors that guide the analysis of the worker / employer relationship: Factor 1: Opportunity for Profit / Loss Does the worker have the opportunity for profit or loss based on their success or failure? If no, then this factor would suggest that the worker is an employee. Factor 2: Investments by Worker and Employer Are a worker’s investments (tools, insurance, etc.) in their work entrepreneurial in nature, and allow them to work independently? If no, then this factor would suggest that the worker is an employee. Factor 3: Degree of Permanence of the Relationship How permanent is the work relationship between worker and employer? If sporadic or project-based, then this factor could suggest the worker could be an independent contractor. Factor 4: Nature and Degree of Control Does the employer have control over the worker in regards to performance of the work, schedule, supervision, pricing of services, etc.? If yes, then this factor would suggest that the worker is an employee. Factor 5: Work Integral to the Employer’s Business Is the work performed an integral part of the employer’s business? If yes, then this factor would suggest that the worker is an employee. Factor 6: Skill and Initiative Does the worker bring specialized skills to the work relationship, and not dependent on the employer for training? If yes, then this factor could suggest that the worker is an independent contractor. In addition to these 6 factors, the IRS has a 20 factor test employers can use to determine if their worker needs to be classified as an employee or independent contractor. Why is this Important? The IRS continues to invest more and more time and resources into enforcing FLSA compliance, especially as it relates to misclassification of employee vs. independent contractor. Fines associated with non-compliance can be devastating to a business, so it is important to analyze each working relationship in order to avoid having to pay back-taxes, penalties, and interest. How Does Time & Pay Help? While we do not help determine employment status, our clients receive free consultations through SESCO HR Management . SESCO will look at all factors, and help you determine whether or not your worker should be classified as an employee or independent contractor. Contact us today to learn more!
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