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Self-Help Builder Newsletter June 2013 Volume 6, Issue # 2 >
What's in a name: should independent contractors really be employees?
By Mary Fleming, RCAC financial management specialist
In
recent months, I’ve received many questions regarding the use of independent
contractors instead of or in addition to employees. There are some obvious
advantages of independent contractors versus employees. Independent contractors
can be 30 percent cheaper than employees and often
burdensome employment rules can be avoided. Employee status is even more important
in light of the Patient Protection and Affordable Care Act (PPACA), which
mandates that employers with at least 50 full-time employees provide health
care insurance or pay a stiff penalty. In a time when funding is threatened to
be substantially reduced or eliminated entirely, these are compelling
incentives for organizations to find ways to save. Studies indicate that in 2011 about 16 million workers were
classified as independent contractors. It is predicted there will be a greater
use of independent contractors in the next 10 years.
However,
improperly classifying a worker as an independent contractor rather than an
employee can have serious ramifications. There is a coordinated effort among
the Internal Revenue Service (IRS), Department of Labor (DOL), and many states
to share audit findings and pool resources to address worker classification. If a worker is classified as an independent contractor
rather than an employee and there is no reasonable basis for doing so, the
organization may be held liable for employment taxes for that worker as well as
penalties and interest. A 2009 U.S. Government Accountability Office
report stated that 71 percent of IRS worker misclassification examinations result
in changes to worker status from contractor to employee.
While no consistent, uniform definition distinguishes an employee
from an independent contractor, the IRS has developed a comprehensive test.
Known as the 20-factor test, the criteria generally fall within three
categories: control (whether the employer or the worker has control over the
work performed); organization (whether the worker is integrated into the
business); and economic realities (whether the worker directly benefits from
his or her labor). The 20 factors are only a guideline. Each factor's degree of
importance varies depending on the occupation and the facts involved in a
particular case.
Organizations must weigh all of these factors when determining
whether a worker is an employee or an independent contractor. There is no set number of factors that makes
the worker an employee or an independent contractor, and no one factor stands
alone in making this determination. Also, factors which are relevant in one
situation may not be relevant in another.
The key is to look at the entire relationship, consider the extent
of the right to direct and control, and document each of the factors used in developing
the determination.
If, after reviewing the three categories of evidence, it is still
unclear whether a worker is an employee or an independent contractor, Form SS-8, Determination of Worker Status for
Purposes of Federal Employment Taxes and Income Tax Withholding can be filed with the IRS. The form may be filed by the organization or
the worker. The IRS will review the facts and
circumstances and officially determine the worker’s status.
IRS TWENTY FACTORS OF THE COMMON LAW
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