Mar 11, 2024
How NOT to Misclassify Employees
In how many ways can you misclassify employees? It's important to know given, since the rapid growth of an independent workforce means increased scrutiny from government agencies to ensure proper classifications. Read through for clarifications that will enable you to avoid legal risks and repercussions.
So, what's the big deal? Misclassification is considered
wage theft, whether you knowingly or accidentally misclassify employees. It
could put your business at risk of an IRS audit for back taxes, severance and
health care coverage for misclassified workers, in addition to legal fees,
reputation damage, and even criminal and civil penalties.
Let's enumerate some misclassifications and their fallout:
- Payroll
calculations involve hours worked, paid time off and deductions. With so
much data to manage, you might accidentally pay your employees the wrong
amount. In other words, overpayment or underpayment of wages can occur.
Note that state requirements may differ from federal law, so check with
your state for the most updated information.
- One of
the most common misclassifications is related to whether the employee
should be exempt from overtime or not. Here's where the Fair Labor
Standards Act comes in: All employees must receive overtime pay for any
hours worked over 40 hours per week, unless they are classified as exempt.
Classifying a nonexempt employee as exempt opens your organization to
FLSA-related fines while causing an employee to miss out on overtime pay.
- An
individual is classified as an independent contractor rather than an
employee. It may be tempting to do so as you work to reduce labor costs to
avoid paying payroll taxes and providing benefits, but it can have serious
consequences. This looks like a great workaround to rules governing
minimum wage, overtime pay, workers' compensation and unemployment
insurance, as well as job-protected leave. But the legal consequences of
pretending an employee is a freelancer are very serious.
In 2019, the wage-and-hour division of the Department of
Labor recovered $322 million in back pay for misclassified employees.
Misclassifying workers could create trust issues among your employees. It can
also cost your company a mint; misclassified workers, besides losing morale,
may be able to take legal action, and your company will face financial
penalties and legal fees.
Do it right
Want to avoid payroll errors? Many states have adopted the
ABC test to determine employee status. The individuals being classified
generally must meet all aspects of the rubric. The individuals are independent
contractors if
- They
work by themselves, that is, not under the employer's control. (A = Alone)
- They
maintain their own place of business. (B = Business)
- They
work at an established trade and exercise control over their own schedule
and method of operation. (C = Control)
That's a very general series of conditions; other rules may
apply. However, it's a good place to start. Meanwhile, there are other things
companies can do.
- Establish
clear policies for payroll.
- Conduct
an internal audit on your documentation process. Check state laws.
- Train
managers and HR staff to correctly classify employees and independent
contractors and to spot potential misclassification issues.
- Carefully
document any changes you make.
- File
Form SS-8, Determination of Worker Status for Purposes of Federal
Employment Taxes and Income Tax Withholding.
- To be
safe, treat the worker in question as an employee until you know otherwise
for sure.
- Work
with legal and employee classification experts, talent acquisition
specialists and/or employment consultants.
Worker roles can evolve over time, as do the rules around
worker classifications. It's a good idea to review each worker's classification
annually and adjust as needed. You can work with a firm that specializes in
independent contractor compliance and engagement to help your company meet
compliance standards, reduce misclassification risk and successfully manage
independent workers.
If you process payroll yourself, it can be challenging to
keep up with new laws and stay compliant. According to the IRS, nearly 30% of
employers make payroll errors each year, with the number jumping to 40% for
small-to-mid-sized businesses. The average penalty for an incorrect payroll
filing is $845. Stay informed of the latest payroll laws to avoid costly
mistakes..
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