An article from Forbes.com recently noted, "This fundamental worker status issue has become one of the most consequential legal determinations around. If you’re in business and guess wrong, the liability for past years can be crushing."
And as recently as 2013 the IRS Inspector General issued a report saying that employers were still getting it wrong.
Mis-classifying employees can result in significant liability. And it is more common than one might think.
According to a article from HRCalifornia, "If your company controls the details and the worker does not have meaningful discretion in how he/she completes the work, it has generally been the rule that the worker will be found to be an employee and not an independent contractor."
In addition, state governments and the IRS are concerned about the loss of tax revenue when this occurs.
“This problem adversely affects employees because the employer’s share of taxes is not paid and the employee’s share is not withheld,” said J. Russell George, Treasury Inspector General for Tax Administration.
“If left unchecked, the problem will continue to deprive the Federal Government, and the American people, of millions of dollars in lost revenue every year,” he added.
The truth for many businesses is that making use of independent contractors can be more efficient and cost-effective than relying solely on salaried employees.
Classifying a service provider as an independent contractor frees a business from several obligations such as tracking hours, paying required tax withholdings for wages, overtime, statutory benefits such as worker’s compensation coverage, unemployment benefits, health benefit plans and pension plans.
In addition, it limits liability for the errors and wrongs committed by the independent contractor.
Under California Labor Code Section 3353:
an “independent contractor” is defined as: Any person who renders service for a specified recompense for a specified result, under the control of his principle as to the result of his work only and not as to the means by which such result is accomplished.
In addition, the IRS has a checklist of 20 factors, which are based on the common law as developed in past court cases and administrative hearings. These factors, found at 4600 IRS manual, Exhibit 4640-1.
Remember that these factors are only a guide for determining whether or not a worker is an employee, and the IRS recognizes that the degree of importance of each factor varies depending upon the occupation and the actual context in which the services are performed.
As an employer, you are expected to exercise sound judgment in your classification of workers. To help in making that call you can use the following tactics to help minimize a potential mis-classification:
Court cases have established three broad categories of factors for determining employee classification:
Do you, as the employer, have a right to direct and control how the worker does the task that you hired them for? Behavioral control factors include the extent of:
Does your business have a right to control the business aspects of the worker’s job such as:
Relevant facts regarding the type of relationship between you and the worker include:
With the recent pressure being put on employers by both the IRS and various state agencies, it is critical that businesses be fully informed regarding the correct status and proper employee classification of all their workers.
According to the IRS website:
"Businesses must weigh all these factors when determining whether a worker is an employee or independent contractor. Some factors may indicate that the worker is an employee, while other factors indicate that the worker is an independent contractor.
There is no “magic” or set number of factors that “makes” the worker an employee or an independent contractor, and no one factor stands alone in making this determination. Also, factors which are relevant in one situation may not be relevant in another.
The keys are to look at the entire relationship, consider the degree or extent of the right to direct and control, and finally, to document each of the factors used in coming up with the determination."
If you are looking for reliable help with determining employee classification, we can help. Get your Free Download: Payroll Outsourcing Guide to help you make an informed decision or call Accuchex Payroll Management Services at 877-422-2824.