Skip to content Skip to footer

Is that an Independent Contractor or is the IRS just happy to see you?

Employees vs. Independent Contractors and why it matters.

When starting a business and bringing staff on board, you must decide whether those individuals providing the services are employees or independent contractors. This post provides important information about how to classify your workforce and avoid costly penalties.

In my experience, many start-ups bring on initial staff as Independent Contractors — this way, they don’t have to withhold payroll taxes or provide benefits such as sick days or workers compensation.  However, according to the Department of Labor, up to “30% of companies misclassify their workers”  (See Statement by Deputy Secretary of Labor, Seth Harris, June 17, 2010; this results in billions of dollars of losses for the IRS so naturally they are now cracking down.

As of January 2013 when payroll taxes increased from 4.2% to 6.2%, a new level of scrutiny will applied to companies to make sure they are properly classifying their workers.  If you are later found to have misclassified an Employee as an Independent Contractor, the IRS can retroactively assess back payroll taxes and slap on penalties.

To be clear, Independent Contractors are generally those people you hire to complete a specific task or project; they work intermittently or on a temporary basis. in Examples include: accountants, lawyers marketing consultants, trainers or outsourced developers. These people tend to work primarily from their own homes/office and at their own hours and serve clients other than you. In other words, unlike an Employee, you do not control their “when, where and how” work is to be performed. For this reason, a company does not need to withhold taxes or provide benefits to Independent Contractors.  At the end of the year, your company issues them an IRS Form 1099 reporting all the monies that were paid to each individual.  It is the individuals’ responsibility to file returns and pay their own taxes for the amounts received.

Once you have set up an LLC or Corporation and start to bring on a workforce, follow the link below to review the IRS’s 20 Factor Test to find out whether someone should be classified as an Employee or Independent Contractor. If you think you have misclassified a worker — not to worry — as of 2011, the IRS began offering a Voluntary Classification Settlement Program to change the status of workers without penalty.  Click here for more information.

This is one area you don’t want to procrastinate — a falling out with an outside contractor that leads to litigation can open up a can of legal worms. States are working more closely than ever with the IRS to ensure that they are not missing out on the additional 2% of flesh from each worker’s paycheck. For more information, check out Forbes article, New Crackdown on Using Independent Contractors (Nov. 12, 2012).

Lastly to note, if you have determined that someone is legitimately an Independent Contractor, be sure to sign an agreement that obligates them keep your information confidential, requires that they transfer rights to intellectual property and itemizes the work product they have committed to deliver (and you have agreed to pay for), to avoid any disputes down the line.

Any doubts or questions as to whether you are properly classifying your workforce? Free to email me or post your questions below.

Is there a topic you would like to see covered on BrillsonLaw? Would you like to be a guest blogger?  Email info@paulabrillson.com

Leave a comment

0.0/5

Office

Digital Law Group PLLC
309 East 37th St.
New York, NY 10016

Get in Touch

Web Design by Doncaster SEO Company © Digital Law Group PLLC 2024. All Rights Reserved.

The information provided on DigitalLawGroup.com and any of its pages, blogs, social media accounts,
etc. (“Site”) is provided by Digital Law Group PLLC for informational purposes only and not for the purpose of providing legal advice. If you would like legal advice, please contact our attorneys. Use of the Site does not create an attorney-client relationship between the user and Digital Law Group PLLC. Moreover, submissions sent through any forms or inquiry pages on the Site do not alone create an attorney-client relationship; however, inquiries are confidential except as provided in our Privacy Policy.

Skip to content