Navigating worker classifications is essential for businesses to adhere to employment laws and avoid costly legal consequences, such as lawsuits, government investigations, and fines. Understanding the difference between an employee and an independent contractor is key – and it just got harder.
New Department of Labor rules now make this task more complex. The new rules are designed to turn more workers into employees, and not independent contractors. Davis Business Law can help your business examine the defining features of each classification and offer practical advice for proper worker classification. Review the article below and then call our experienced business attorneys today for a free consultation about how we can help your company with its independent contractor classifications.
Key Takeaways Regarding Employee Classifications
-
The old rule had five elements but focused on two: the nature and degree of control over the work and the worker’s opportunity for profit or loss.
-
The Department of Labor has introduced a new rule for worker classification, emphasizing the ‘totality of the circumstances,’ which assesses the entire business relationship rather than focusing on two elements.
-
The recent changes favor employee-friendly interpretations, making more workers employees and expanding the coverage under the Fair Labor Standards Act (minimum wage and overtime), social security taxes, workers compensation coverage, unemployment insurance and other related laws.
-
Key factors in classifying workers include the degree of employer control, the worker’s financial investment and risk, and the duration of the work relationship, with misclassification leading to legal consequences and loss of benefits for workers and potential fines for employers.
The New Department of Labor Rule on Independent Contractor Classifications: Totality of the Circumstances
Photo by Jonah Pettrich on Unsplash
The Department of Labor recently introduced a new employee-friendly rule regarding worker classification. Instead of relying on specific definitions of employment, the rule emphasizes the overall situation or the “totality of the circumstances.” It’s a shift that seeks to classify more workers as employees and make more businesses responsible for social security tax, minimum wage, workers compensation, unemployment insurance, and the other employment laws and protections employees are provided.
Several elements each play a complicated role in distinguishing between an employee and an independent contractor. No one factor is meant to be controlling anymore, and each factor must be analyzed. These factors include the level of control exercised by the employer over work, financial investment and risk taken on by the worker, as well as how permanent their relationship is with each other.
Employer Control Over Work
One of the elements of worker classification includes the right to control that employers exert over the worker’s job responsibilities. If an employer has the right to control both what tasks a worker performs and how to carry out those tasks, that factor will favor the worker being considered an employee. This factor encompasses matters such as working hours, location, equipment usage, processes, and overall supervision. If the employer sets working hours and location and tells that worker how to do something, that suggests an employment relationship and not an independent contractor one.
Also, the location where a worker conducts their duties does not determine their status. With remote work options available for employees, worker control can occur just as easily remotely as it can in the office. Businesses must account for other factors besides physical workplace to accurately determine a worker’s classification.
For example, if your business often needs a plumber and hires someone to routinely bring their own tools and knowledge and fix the problem, that person likely performs services as an independent contractor. If your business instead hires someone to fix the problem, has a right to control their work, and provides them with training, tools, and oversight, that person is likely an employee.
Financial Investment and Risk
The classification of a worker also considers their level of financial investment and risk. Did the workers invest in their own tools and equipment? Is the workers putting profit or loss on the line by agreeing to a task? If a worker has made substantial investments in their business and faces potential financial risks, they are more likely to be deemed an independent contractor. If the worker is not investing their own money in the job, and relying on that employer alone for income, that factor leans toward employee.
Pay Schedules
Pay schedules are another factor in independent contractor classifications. Independent contractors typically have the flexibility to negotiate their payment terms and schedules. Unlike employees who receive regular salaries or hourly wages, contractors often invoice for completed projects or services. The ability to set their payment terms underscores the autonomy and independence of contractors. If a business exerts control over the timing and structure of wages paid, it may suggest an employment relationship. Therefore, a flexible and negotiable pay schedule is a key factor in establishing the independent contractor classification and avoiding misclassification challenges.
Permanence and Duration of the Relationship
The permanence and duration of the work relationship also affects a worker’s classification. If an individual works consistently for one employer over a long period, with no other employment commitments, this typically indicates the presence of an employer-employee relationship and suggests courts will consider them to be an employee. In contrast, short-term or project-based collaborations that have clear deadlines tend to align more with independent contractor status. If a worker is self-employed and can freely refuse a job, that suggests independent contractor.
Relationship Exclusivity
The exclusivity of the relationship is another factor in determining the classification of workers as independent contractors. When a business engages an independent contractor, one characteristic that distinguishes them from employees is the lack of exclusivity in the relationship. An independent contractor typically has the freedom to work for multiple clients simultaneously, providing services on a project-by-project basis. . If a company imposes restrictions on an independent contractor, preventing them from taking on other clients or projects, it raises questions about the true nature of the working arrangement.
The Impact of Misclassified Workers: Lawsuits and Legal Penalties
Misclassifying a workers as an independent contractor can have significant negative consequences for a business, ranging from lawsuits to government investigation and fines. If an employer fails to pay social security, workers compensation, or unemployment insurance for a misclassified independent contractor, the fines and penalties could be severe.
One of the immediate and severe consequences or worker misclassification is legal liability. Employment laws, tax regulations, and benefits entitlements (such as social security and unemployment insurance) differ between employees and independent contractors. Misclassifying a worker as an independent contractor can lead to violations of these laws, exposing the business to legal action.
Government agencies such as the Internal Revenue Service (IRS) and the Department of Labor (DOL) closely scrutinize worker classifications. Penalties for misclassification may include fines, back taxes, and legal fees, all of which can significantly impact the financial health of the business.
Financial repercussions extend beyond legal penalties with federal or state governments. A misclassified worker may take legal action against the business. If a worker believes their employer wrongly classified their employment status as an independent contractor, they may file a lawsuit seeking employee benefits, minimum wage or overtime pay, and other entitlements. These legal battles can be time-consuming, expensive, and damage the company’s reputation. It may also result in the compulsory payment of back wages and damages to affected workers.
In some cases, businesses may face class-action lawsuits initiated by groups of misclassified workers. These collective legal actions can escalate the financial and reputational damage for the company. The cost of defending against such lawsuits and the potential for large settlements can be crippling for you business.
Engaging Business Attorneys to Evaluate if the Employer/Employee Relationship Exists
Hiring an employment attorney to check if your workers are classified correctly is a smart move for any business. Firstly, different rules apply to employees and independent contractors. If you mix them up, you might get sued. An employment attorney knows these rules inside out. They can go through your worker classifications with a fine-tooth comb and make sure everything lines up.
Secondly, getting the classifications right is an investment that can save your business money. If you misclassify someone, you might end up owing back taxes or fines to federal and state agencies. An business attorney can help you avoid these financial pitfalls by making sure everyone is in the right category. It is probably also a good idea to invest in written job descriptions for your workforce.
Imagine the nightmare of facing legal trouble or fines because you didn’t get this right. That’s a headache no business needs. Hiring a business attorney to audit your worker classifications acts like a shield, protecting you from potential legal issues down the road. Arranging for your own audit can make sure you play by the rules, save you money, and keep your business reputation intact. Better you audit your business than the government auditing it.
Summary: Get it Right or Pay the Price
Accurately classifying workers as employees or independent contractors is crucial for businesses to comply with employment laws and avoid legal consequences. Recent Department of Labor rules have made this task more complex, emphasizing the ‘totality of the circumstances’ rather than specific elements. These changes favor employee-friendly interpretations, expanding coverage under various laws.
Key factors include employer control, financial investment and risk, duration of the relationship, exclusivity, and pay schedules. Misclassification can lead to severe consequences, including legal liabilities, fines, and lawsuits.
Engaging business attorneys, like those at Davis Business Law, becomes essential. They can navigate the complexities of your workers’ independent contractor status, ensuring compliance, preventing financial pitfalls, and safeguarding the business’s reputation. Conducting regular audits with legal expertise is an investment that pays off by avoiding potential legal troubles and maintaining a solid foundation for the business.