Do Not Make The “Independent Contractor” Mistake

Employee, or Independent Contractor? Do not make that mistake.

What I mean is: do not try to force your staff into an independent contractor position. There is a reason that independent contracting has grown. It lies at the feet of the employers, who found that some people could be bought off by the illusion that IC is a status symbol and makes you more affluent.

There is a rebuttable presumption that where a worker performs services that require a license pursuant to Business and Professions Code Section 7000, et seq., or performs services for a person who is required to obtain such a license, the worker is an employee and not an independent contractor. Labor Code Section 2750.5 (*)

If you know that you will wish to tightly control the processes and products of your staff (you know who you are) it is an expensive mistake to stuff them into independent t contractor status.

It will cost you even more if your staff has a professional degree or any other type of postgraduate education. We know how to plow through complicated government websites with poor user-friendliness and find the information we need to ensure the receipt of our economic due.

For example, in the State of California, withholding pay based on a spurious claim that the employee consented to Independent Contractor status may cause:

*closure of your business.

*up to 30 days of full wages for the unpaid employee.

All it takes is one employee filing one form with the State of California Department of Industrial Relations, Division of Labor Standards Enforcement (DLSE).

Meanwhile, here’s a paragraph or two from the IRS:

IRS Summertime Tax Tip 2010-20

As a small business owner you may hire people as independent contractors or as employees. There are rules that will help you determine how to classify the people you hire. This will affect how much you pay in taxes, whether you need to withhold from your workers paychecks and what tax documents you need to file.

Here are seven things every business owner should know about hiring people as independent contractors versus hiring them as employees.

  1. The IRS uses three characteristics to determine the relationship between businesses and workers:
    • Behavioral Control covers facts that show whether the business has a right to direct or control how the work is done through instructions, training or other means.
    • Financial Control covers facts that show whether the business has a right to direct or control the financial and business aspects of the worker’s job.
    • Type of Relationship factor relates to how the workers and the business owner perceive their relationship.
  2. If you have the right to control or direct not only what is to be done, but also how it is to be done, then your workers are most likely employees.
  3. If you can direct or control only the result of the work done — and not the means and methods of accomplishing the result — then your workers are probably independent contractors.
  4. Employers who misclassify workers as independent contractors can end up with substantial tax bills. Additionally, they can face penalties for failing to pay employment taxes and for failing to file required tax forms.
  5. Workers can avoid higher tax bills and lost benefits if they know their proper status.
  6. Both employers and workers can ask the IRS to make a determination on whether a specific individual is an independent contractor or an employee by filing a Form SS-8, Determination of Worker Status for Purposes of Federal Employment Taxes and Income Tax Withholding, with the IRS.
  7. You can learn more about the critical determination of a worker’s status as an Independent Contractor or Employee at IRS.gov by selecting the Small Business link.  Additional resources include IRS Publication 15-A, Employer’s Supplemental Tax Guide, Publication 1779, Independent Contractor or Employee, and Publication 1976, Do You Qualify for Relief under Section 530? These publications and Form SS-8 are available on the IRS website or by calling the IRS at 800-829-3676 (800-TAX-FORM).

Links:

Publication 15-A, Employer’s Supplemental Tax Guide ( PDF )

Publication 1779, Independent Contractor or Employee ( PDF )

Publication 1976, Do You Qualify for Relief under Section 530? ( PDF  )

Form SS-8, Determination of Worker Status for Purposes of Federal Employment Taxes and Income Tax Withholding ( PDF )

*http://www.dir.ca.gov/dlse/FAQ_IndependentContractor.htm

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