09/03/2015
What's an Independent Contractor: 5 Key Facts You Need to Know
Posted by HR Solutions Blog Team on August 17, 2015. This is a short synopsis of a larger document that is of vital interest to many who do not issue or receive a W-2.
When a worker qualifies as an independent contractor, the employer is generally relieved of obligations related to payroll taxes, minimum wage and overtime requirements, benefits, workers' compensation, and unemployment costs for that individual. However, only a small fraction of workers qualify for independent contractor status.
Here are five key facts you need to know before classifying a worker as an independent contractor:
Fact #1: Workers are presumed to be employees.
The presumption is that a worker is an employee, unless he or she meets certain criteria established by federal and state tests. If an independent contractor classification is ever challenged, you will need to show that the worker meets these criteria.
Fact #2: Several tests assess status.
Employers can use a number of tests to evaluate a worker's status. The most common is the Internal Revenue Service (IRS) Common Law Test, which is used for federal tax purposes. This test generally looks at the extent to which the employer has the right to control the worker. Other tests include:
• The Department of Labor (DOL) "economic realities" test to determine whether workers are covered by the Fair Labor Standards Act (FLSA). The FLSA regulates minimum wage, overtime, and other wage and hour issues.
Fact #3: The DOL recently provided new guidance on its test.
Under the DOL's "economic realities" test, an employee is someone who, as a matter of economic reality, is dependent upon the business to which he or she renders service. An independent contractor is generally not economically dependent upon the services they provide to one particular business.
Fact #4: The existence of a contract or Form 1099 does not prove independent contractor status. The DOL has made clear that an agreement between an employer and a worker designating or labeling the worker as an independent contractor is not indicative of the worker's status.
Fact #5: Misclassification is a major focus of enforcement.
Misclassification can deny workers the rights and protections to which they are entitled and reduce tax revenue collected by the federal government and states.
The penalties for misclassification can be significant. In addition to owing back pay, overtime, and benefits to a misclassified worker, the employer may be ordered to pay back taxes, interest, and fines. In some states, employers that intentionally misclassify a worker may also face criminal charges or stop-work orders. Likewise misclassification may cause the self employed to be subject to higher taxes and fees.
Conclusion:
For employers before classifying a worker as an independent contractor, make sure to satisfy all applicable federal and state tests. If you are an independent contractor make sure you qualify or you may need to pay more in taxes or be the subject of audits, etc. Contact E&R at 631-475-3322 and let us help you through the thicket of being an independent contractor.