Independent Contractor, W2 Employee, can you afford to blur the difference?
The world of work is changing rapidly, creating new ways of working, new ways for employers to get work done. For both companies and employees, the need to have quick and easy access to talent and work, has created a new way of working outside the traditional employee-to-employer relationship. Independent contractors, often called 1099’s, are people who work assignment to assignment, project to project. Currently, this workforce is estimated to be 16 million folks, and by 2015 is targeted to be 21 million. Unfortunately, the legal and financial ramifications of this growing new workforce have not escaped the attention of taxing agencies who want to protect the revenues generated from a W2 employee base. W2 employees have their taxes withheld at each paycheck and their employer pays most, if not all, payroll taxes on their behalf. The IRS and multiple state taxing agencies are now challenging the validity of the “independent contractor” status, ensuring that employers are not using a worker’s preference to work independently as a way to avoid otherwise mandated tax calculations, payments, and reports. When employers organize work in ways that blur the distinctions between their W2 and 1099 workers, they are often doing so without being fully aware of the risks of creating a basis for a misclassification audit, which can be costly for both employers and 1099s. We have prepared the following Q and A to outline the issues employers are likely to face when defending the classification status of their 1099 workers. Make no mistake, if you are a large or significant user of the 1099 worker model, there is likely a state or federal taxing agency who either has you and/or one of your 1099 workers on their radar as we speak. Why independent/1099 workers? The independent/1099 worker provides employers with all the traditional benefits of flexibility. They are paid only for hours actually worked or in some cases results produced. Savvy independent contractors price their services at a level to appropriately cover the costs of taxes and benefits, so the per-hour rate is often considerably higher than applied to their W2 employee counterparts. Employers are willing to pay the higher rates preferring a process where there is little to no paperwork for them, no hidden costs, and no complicated benefit packages to administrate. Convenience aside, the most frequently stated reason why companies hire independent contractors is that it has become a workforce made up of highly talented and sought after technical and managerial professionals—many calling themselves consultants. Most 1099 workers have not only fully mastered their craft, but because of their exposure to a wide range of project and organizational challenges, have created profiles with the skills, expertise, and talents that are highly valuable to most employers. Why do workers choose to work as “independent contractors”? The popularity of independent contractor status within the employee community is also growing exponentially. At some points in their career, workers like the exposure they get to a wide range of technical or professional challenges, plus the flexibility that comes from being able to work when they want to. For many professionals, the higher per-hour pay they can earn as a “consultant,” in addition to the deductions they can take on their individual tax return for certain business expenses not normally deductible to a W2 employee, creates a level of financial security they would not be able to obtain working as a W2 employee. What is the difference between an independent contractor and a regular W2 employee? Theoretically, the two types of workers should be noticeably different in terms of when and how work is performed, how it is financially transacted (by invoice or paycheck), and the length and scope of the working relationship between worker and employer/client. In the real world, however, the differences between the two types of workers are not always that easy to discern and often comes down to a determination of whether or not the independent worker has legally created their independent contractor status (business license, tax id numbers, professional liability insurances, etc.). Given this breakdown between theoretical intent and pragmatic execution, the intended distinction between the truly independent and the truly W2 worker populations has been blurred, creating real consequences for worker misclassifications at an alarming rate. If I classify a worker as an “independent contractor” do I avoid having to pay all payroll taxes? Not really. A nuance and little known aspect of Washington State law is that employers who use Independent Contractors to perform personal work are required to pay the Workers Compensation insurance and the state’s SUTA tax on hours and dollars paid to these 1099 workers. Only if a 1099 contractor is a fully licensed and incorporated business entity (an LLC for example), paying the required business revenue taxes, can these costs be avoided. Bottom line, classifying an individual worker as a 1099 in the State of Washington does not automatically bypass the employer’s responsibility to report hours of work for workers compensation insurance or earnings that are used to calculate and pay Washington State’s SUTA tax. There is more involved before those taxes can be fully avoided. Why do we need to classify workers correctly? The issue at stake revolves around an employer’s obligation to calculate and pay taxes for W2 employees that they do not have for independent contractors. For their 1099 workforce, employers pay an invoice and there is no withholding for federal or state income taxes, calculation and payment of social security, Medicare or unemployment taxes. If a worker is originally classified as a 1099, but under audit turns out to be an employee, the employer is often subject to back taxes, fines, and penalties. The liabilities associated with a misclassification audit are both unforeseen and expensive. Since September 2011, the IRS has collected 9.5 million dollars in back taxes, penalties, and fines from employers who have misclassified more than 11,400 workers. How do you “test” if a worker is a W2 or an independent contractor? One of the common misperceptions with 1099 workers comes from employers who believe that if their “contractor” is legal, (i.e. they have the proper business licenses, UBI (tax ID) numbers, insurances, etc.) and a contract between themselves and their contractor that labels them “independent”, they meet all aspects of the 1099 test. Most taxing agencies, on the other hand, operate from the belief that the “legality” of the claim of independent contractor status lies with the nature of the work to be performed and the degree of control the employer has over how and when it is performed—not the legitimacy of the contractor’s right to work as an independent contractor. There are a number of tests that are administered by different state and federal taxing agencies to determine if a worker is really an independent contractor or a W2 employee. Unfortunately, not all of these tests are fully compatible, nor is case law clear on how any test can be applied, making the whole landscape of proper classification a slippery slope. In the end, most of the classification tests come down to:
- The degree of control the company has over the worker’s behavior. The more control an employer has over where, when, and how work is performed, the less likely the worker can be considered “independent.” Employers who place their independent contractors on work teams with required hours of work, mandatory attendance at meetings, and required collaborations around work products, often do so at the risk of having that independent contractor be re- classified as a W2 employee.
- The degree of control over a worker's financial opportunity. The more control an employer has over a worker’s source of income, the less likely that worker will be found to be “independent.” An agreement to pay a fixed cost per week, for example, can be just as suspect as an agreement to pay an hourly rate if the agreement includes a provision to work 40 hours/week—both tie a worker to a single source of income for extended periods. Other considerations related to “financial control” include payments or reimbursements for business expenses, equipment or tools. The more these sources of income are directed and controlled by the company/client, the less independent a worker will appear.
- The type of relationship (exclusivity or duration) that is formed between worker and company. Case law around the permanency of a relationship suggests that work assignments intended to last six months or longer make the independent status more suspect than shorter term work arrangements. A related factor is whether or not the worker is free to pursue other business opportunities during the term of their agreement. Companies who regularly entertain independent contractors who work a regular 40 hour work week, and for years at a time, are clearly stretching the definitions of “independent.”
- Overlapping a W2 and 1099 status for the same employee in the same report year can be an audit trigger. Avoid firing a W2 worker and bringing them back a week later as a 1099.
- There is a form, IRS SS-8’s, which can be used to request government determination of a classification status. Keep the number of these forms you file or your 1099’s file on your behalf to a minimum.
- 70% of misclassification audits get triggered by independent contractors filing for benefits routinely available to W2 workers, (i.e. workplace injury claims, unemployment claims). Make sure your workplace policies and practices avoid references to these benefits.
- Develop and execute an independent contractor agreement that, among other things, acknowledges the intent of the relationship and waives any rights to company sponsored health or retirement benefits. We recommend including in your agreement a provision that the independent contractor recognizes you as their common law employer with respect to protections under workers compensation laws in the event of workplace accidents. We also recommend you include an indemnification clause that excuses you from any liabilities associated with an independent contractor’s failure to pay their own mandated self-employment or W2 taxes.
- Create specific policies and procedures for working with true independent contractors. Train your front line managers on the requirements for “independence” to ensure the lines of differentiation stay clean.
- Review benefit plans to ensure a clear definition of plan participants, specifically excluding the employees of third party employers and independent contractors.
- Conduct internal audits of your current 1099 workforce, ensuring all contracts are up to date, and that your company is paying the required taxes on those who are providing personal services.