Probably one of the biggest issues I argue with clients about is whether or not they should pay their hired labor as an employee or an independent contractor. I get it. Most business owners don’t want to take on the additional burden of paying employer taxes and workers' compensation. But this another one of those situations where paying a little bit up front to maintain compliance, can save you a fortune later on. There are legal ramifications for paying someone as a contract worker when they are technically defined as an employee under common-law worker classification rules. These rules consider the following evidence: whether the business has behavioral control over the worker, whether they have financial control over the worker, and what is the business’s relationship with the worker.
A business may have behavioral control over the worker if the business has the right to direct how the work is accomplished. This may be the case if business gives directions to the laborer on any of the following items:
When and where to do the work
- What tools or equipment to use
- What workers to hire or to assist with the work
- Where to purchase supplies and services
- What work a specified individual must perform
- What order or sequence to follow when performing the work
Generally, the greater the level of detail a business gives to a laborer, the more likely they should be paid as an employee and not an independent contractor. A worker may also be considered an employee if the business provides any training or gives them any kind of evaluation.
Financial control looks at the economic aspects of the relationship. An independent contractor may have a larger investment in any equipment they use for the work being performed, for example large tools or the vehicle they drive to a worksite. An independent contractor is more likely to have unreimbursed expenses that they will be able to deduct from the income they receive from the business. Unreimbursed expenses will also cause the contractor to be more likely to have a profit or loss from their income and if there is a possibility of the contractor to experience either, than they are less likely to be considered an employee. They are also less likely to be considered an employee if their services are available to the public and if they are not guaranteed payment on a regular basis like an hourly or salary employee would be.
The relationship of the two parties is also worth examining. Offering benefits to a contract worker such as health insurance or a 401K may indicate that they should be paid as an employee. In fact, some of those benefits may only be available to an employee and not a contract worker. Also, if the relationship is on a continuous ongoing basis, there may come a time when the contract worker may need to be reclassified as an employee. The Department of Labor applies an economic reality test to determining if someone is an employee or an independent contractor, which says it ultimately boils down to whether or not the worker is economically dependent on the employer for work. If they are, then they are viewed as an employee and not in business for themselves.
If a laborer is determined to be an employee, then the business will need to pay the employee on a regular basis, withhold payroll taxes, and file the monthly and quarterly payroll tax reports and remit the payroll tax payments. Not paying the taxes withheld to the appropriate taxing authorities is considered payroll tax fraud and huge issue the IRS is currently facing. There are currently many payroll companies that can help you with these filings and several online applications that don’t require a large investment. We use Gusto for processing payroll for our clients and maintaining compliance with payroll tax authorities.
Paying an employee as an independent contractor when they would be considered an employee can result in huge fines and penalties from payroll tax authorities. An employer may have to pay the employer paid portion of the Social Security and Medicare as well as any state or federal unemployment taxes that should have been paid on the workers’ wages. Furthermore, a disgruntled employee can take legal action against the employer and sue for back wages and unpaid benefits. Misclassifying a worker can also lead to legal ramifications from the business’s insurance carrier for not having worker’s compensation, especially in Kentucky, where worker’s compensation is required by law.
To ensure proper classification, consult a legal professional and be honest about the terms of your engagement with the laborer. If you still cannot determine whether or not they are an employee or an independent contractor, a business can file Form SS-8, Determination of Worker State for the Purposes of Federal Employment Taxes and Income Tax Withheld. This form requests a ruling from the IRS on how the individual should be taxed. It is free to file but may take several months to get a response. Businesses should also periodically review their worker relationships to maintain compliance. It is not uncommon for an independent contractor to become an employee. It is however a red flag if someone who is paid as an employee suddenly starts being paid as an independent contractor. You will want to ensure that should the relationship change; you are able to provide a valid reason for the change.
It is very important to make sure that individuals you are paying as an independent contractor meet the requirements to be taxed as such. Whether they are an independent contractor or an employee, business owners should work with a payroll or tax professional to make sure the correct paperwork is filed on time. Employees will require monthly and quarterly tax returns and a W-2 to be filed and most independent contractors will need a 1099 submitted for them by January 31st of the following year. Legal and tax professionals can help you in determining an employee’s status as well as how to maintain compliance. It may seem like an unnecessary expense, but the truth is ensuring that you follow classification rules and regulations provided by the Department of Labor can prevent a larger headache in the future.
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