5 Worker Misclassification Mistakes to Avoid

By MBO Partners | April 13, 2023


Key Points

Worker classification is a complicated yet very important part of independent contractor engagement.

Becoming familiar with how the IRS and Department of Labor (DOL) categorize workers is a good first step.

One of the most important things to remember is that independent contractors are part of a business-to-business relationship.

Deciding how to classify workers is an important and can often be quite complicated. Whether you classify someone as an employee or a contractor will dictate how you pay taxes as an employer, how the worker is paid, whether they are eligible for benefits, and how they are managed on a daily basis. Below, we explore five common worker misclassification mistakes and how to avoid them.

1. Not Fully Understanding the Difference Between Employees and Independent Contractors

In general, a full-time employee works for a single employer who dictates the work performed as well as the hours and location of work. An independent contractor, on the other hand, operates as an independent business and may perform work for multiple clients. Contractors submit invoices for completed work and provide their own tools and equipment. Independent contractors are responsible for both the individual and employer side of taxes whereas employees are entitled to legal benefits of a W-2 employee.

These are the very general differences between employees and independent contractors, but things can get complicated quickly. There are several laws, tests, and definitions that distinguish these two types of workers. Becoming familiar with how the IRS and Department of Labor (DOL) categorize workers is a good first step. Individual states may have particular laws as well, but many are based off of the IRS or DOL rules.

The DOL looks at a number of factors to determine if a worker is an employee or independent contractor under the Fair Labor Standards Act (FLSA). These factors include:

  • The permanency of the relationship.
  • The amount of the alleged contractor’s investment in facilities and equipment.
  • The nature and degree of control by the principal.
  • The alleged contractor’s opportunities for profit and loss.
  • The amount of initiative, judgment, or foresight in open market competition with others required for the success of the claimed independent contractor.
  • The degree of independent business organization and operation.

The IRS looks at common law rules—facts that provide evidence of the degree of control and independence in the relationship between a worker and a business. These degrees of control fall into three categories: behavioral control, financial control, and relationship of the parties.

Learn more: Worker Classification Tests: DOL, IRS, State Tests for Classifying Workers

2. Not Maintaining Proper Client-Contract Relationships

One of the most important factors both to the IRS and the DOL comes down to degree of control. Independent contractors are responsible for providing the work outlined in their contract. Unless otherwise specified, they can work when, where, and how they want. If they are performing a job that an employee is already doing, or if a manager is treating them like ana employee, your company may be at risk for misclassification.

When in doubt, just remember that independent contractors are part of a business-to-business relationship. If you try and control how they do their job or over-supervise their work, you risk of misclassification increases. Use your initial conversations and contract with an independent as a guide of establishing rules, communication, and management expectations.

Up next: Top 5 Employee Misclassification Penalties to Avoid

3. Not using Written Contracts or Keeping Good Records

Using a written contract can be one of the best ways to define a working relationship with an independent contractor and protect your company from misclassification. A written contract should outline the scope of work, define how managers and contractors will communicate, specify payment terms, and explicitly state that the person you are engaging is an independent worker free from control. If your company requires insurance, the contract can be a good place to put this information as well.

Another good practice is to conduct an internal audit of your current classification processes. This is a helpful way to see if what you are doing is compliant. It can also provide valuable insight as to what HR personnel and hiring managers understand about working with independent contractors.

Check out: 3 Reasons to Use a Written Contract for Consultants

4. Not Confirming Full-Time Employees Know How to Work with Independent Contractors

There is so much to learn when it comes to working with independent contractors. While hiring managers will need to know the details of independent contractor engagement, it is also important to keep your general employee population in the loop.

Talk to employees about the role of independent contractors at your company and how they will be working together. If a contractor will be working remotely, only available as a resource for a specific project, or keeping a certain set of hours make sure employees know this information and understand why the contractor is allowed to work this way. Talking openly about the role of independent contractors in your company will help normalize the concept of a blended workforce and give employees the answers and confidence they need to work with contractors.

Up next: 10 Ways Enterprises Can Prepare for Independent Contractor Compliance

5. Not Prioritizing Independent Contractor Satisfaction

In order to attract top independent talent, it is important for companies to be aware of independent contractor satisfaction. If a contractor has a negative experience with your company because they are being treated like an employee, they might raise a red flag for misclassification. Keeping contractors happy is not only helps boost your business reputation—it can help you stay compliant as well.

Top points of satisfaction for independents include a simple onboarding process, a positive work environment, and fast and reasonable payment terms. When you are able to offer independents a place to safely and compliantly provide their expertise, everyone leaves happy. You can see more of what independents look for in a client relationship in our latest Client of Choice research.

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