WORKER CLASSIFICATION

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⚠️ A MAJOR Shift in U.S. Labor Policy is Coming: Are You Ready? ⚠️
⚠️ A MAJOR Shift in U.S. Labor Policy is Coming: Are You Ready? ⚠️ 2560 1707 PayReel

Do you think your business has legally legitimate independent contractors? A groundbreaking change in U.S. labor law requires you to think again. With the new rule set to hit the ground running in March, the U.S. Department of Labor has unleashed a colossal upheaval to the way we all do business. Its impact on companies and workers cannot be overstated as the decision will have a much bigger impact than the policy adjustments we’ve seen before. Additionally, since it’s taking place on a federal level, practices that have led to so many headaches for California are coming for the rest of us. With this new ruling, companies will not be legally justified in casually classifying workers as independent contractors. The ramifications of this are monumental and time-sensitive.

As we’ve seen in California, the worker classification decision uses multiple factors to determine the degree of economic dependence workers have on the company. The economic reality test guides the assessment and states the following:

“The following factors […] should guide the assessment of whether a worker is an employee under the FLSA or an independent contractor in business for themself:

1. Opportunity for profit or loss depending on managerial skill,
2. Investments by the worker and the employer,
3. Permanence of the work relationship,
4. Nature and degree of control,
5. Whether the work performed is integral to the employer’s business, and
6. Skill and initiative.”

Increased Costs, Risks, And Administrative Load: Critical Implications of The Decision

In the complex landscape of worker classification guidelines, the six key determining factors of the economic reality test provide guidelines for accurate/legally justified worker classification decisions. The test states, “All factors should be considered. No single factor determines a worker’s status, and no one factor or combination of factors are more important than the other factors. Instead, the totality of the circumstances of the working relationship should be considered.”

Let’s go through two hypothetical examples to examine the key implications of this change.

Example 1: Classifying Coders

A software development firm has a team of independent contractors coding for their operation. Historically, their decision to classify these workers as independent contractors has been legally sound enough for them to operate under this business model. As part of their internal reassessment in response to the new ruling, they consider all six factors of the economic reality test, keeping in mind that passing the smell test on even 5 of the 6 factors still does not amount to a strong case to justify their existing assessment.

After examining the new guidelines as a whole, this firm decides it can no longer justify classifying coders as independent contractors. Among the other factors, they find number 5 significant to their decision. After all, coding is central to the firm’s operations. The Department of Labor’s tightened criteria largely eliminate their legal justification for their previous classification. The firm decides it needs to reclassify all of its coders as employees. The clock is now ticking: They must implement changes before the law goes into effect in March.

Cascading Consequences

Without immediate action, the firm is at increased risk of committing compliance violations and incurring hefty compounding fines. These could include a $50 fine for each W-2 form they fail to file, a penalty equal to 1.5% of the employee’s wages, and a $5,000 penalty for the first misclassified employee and up to $25,000 for each subsequent violation.

Each newly classified employee gains access to the corresponding benefits and legal safeguards, which leads to increased costs both due to the higher number of employees and also because of the increased administrative load of implementing and carrying out the changes. By being proactive though, the company saved itself a mountain of problems.

Such a scenario highlights the intricate balance employers must navigate in accurately classifying their workers, ensuring compliance with labor laws while also meeting their operational needs.

Example 2: Classifying Brand Ambassadors

A clothing brand engages brand ambassadors to promote their products. Unlike the coders, these brand ambassadors do not perform work that is integral to the company’s core business. The company has engaged them as independent contractors due to the flexible, campaign-based nature of their work. While they pass the 5th factor, the introduction of stricter labor laws means the clothing company must evaluate the degree of control it has over their work as well as whether these ambassadors are genuinely operating independently.

From there, they must decide whether to make contractual adjustments and operational changes to ensure their decision aligns with the new legal requirements or whether they need to reclassify the brand ambassadors as employees. If they choose the latter, the company needs to integrate them more formally into its workforce and face the cascade of changes that come along with that–such as adhering to employment laws, providing benefits, and potentially altering how these ambassadors are managed and how their work is structured.

Any company using brand ambassadors must reassess its practices in response to the ruling. The key challenge will be to maintain the effectiveness of their ambassador program while ensuring full compliance with the new labor laws.

Immediate Action Required: 6 Steps You Must Take NOW to Protect Yourself

To stay ahead of this tidal wave, companies must:

1. Conduct an Internal Audit: Review your current independent contractor relationships. Could workers be reclassified under this new rule?
2. Deep Dive into the Criteria: Get up close and personal with the six determining factors of worker classification. Ignorance is not bliss here and “Oops, I didn’t know,” doesn’t hold up as a legal defense. Keep in mind that no two states operate in exactly the same way and compliance rules vary from region to region.
3. Seek Expert Advice Immediately: Consult with specialists (👋 !) who breathe labor law implications and compliance. Don’t delay!
4. Forecast for Increased Costs: Prepare your budgets for the imminent rise in costs linked to reclassifying workers as employees – think benefits, taxes, and employer responsibilities.
5. Redirect Resources: In addition to the shift in financial resources, examine the implications of increased internal employee count and be ready to redirect labor to support the shift. Make the necessary changes to address the administrative chaos necessary to accommodate onboarding paperwork as well as changes in payroll/benefits needs. Put a system in place to address compliance requirements for workers who may be here today and gone tomorrow.
6. Revamp Your Business Model: Rethink and restructure your business operations and models as necessary, especially when heavily reliant on independent contractors or gig workers.

The Bottom Line

The new U.S. Department of Labor rule is not just a change – it’s a revolution in how businesses in the United States must operate. It’s a big deal. Huge. The good news is that you don’t have to navigate these turbulent waters alone. If you could use a little help, reach out to our team for a free consultation. We specialize in this domain and are equipped to assist you in tackling these monumental changes.

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So You Think You Might’ve Misclassified a Worker. Now What?
So You Think You Might’ve Misclassified a Worker. Now What? 2560 1707 PayReel
In today’s evolving business landscape, the distinction between W2 employees and independent contractors has become increasingly significant. This differentiation not only affects the benefits workers receive but also has a substantial impact on a company’s financial obligations. Some businesses manipulate these classifications intentionally to save money, but others simply lack of understanding of the regulations. Misclassification—regardless of the intent—can lead to hefty penalties. If you find yourself wondering if you’ve misclassified a worker, you should take steps to fix the problem immediately. 

Why is Worker Classification Such a Big Deal?

The gig economy, coupled with the burgeoning start-up culture and a growing independent workforce, has led to heightened scrutiny from government agencies. They are keen to ensure proper worker classification. The definition of an independent contractor has become more stringent, prompting companies to critically reassess how they categorize their workers. Failing to do so could attract scrutiny from the Department of Labor.

How to Prevent Problems

Ignoring worker classification rules is a risky venture. Eventually, it will catch up with you. Misclassifying employees, whether intentional or accidental, is considered wage theft, and the government enforces strict penalties for such violations. Misclassification can result in audits, substantial fines, legal fees, damage to reputation, and even criminal charges in cases of fraud or intentional wrongdoing.

Conduct Internal Audits

To avoid misclassification, companies should conduct internal audits, applying tests like the ABC test to ascertain the correct status of each worker. This process includes ensuring all necessary documentation is in place. If uncertainties persist, companies can file Form SS-8 for official determination but should treat the worker as an employee in the interim.

Regularly Review Classifications

Worker roles and classification regulations can change over time. Businesses should review each worker’s classification annually. For many organizations, managing this complex landscape is a challenge, leading them to partner with an Employer of Record—a firm that specializes in compliance and management of contract workers.

Outsource Classification Management

Businesses that want to outsource worker classification find that engaging a partner with such expertise eases the burden of properly classifying independent contractors. This helps businesses stay compliant and frees them up to focus on their core business activities. As an Employer of Record, PayReel manages the complexities of worker classification, providing peace of mind and mitigating risks associated with non-compliance. If your company would benefit from expert assistance in navigating these critical aspects of workforce management, reach out.

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Santa Issues Warning: Here’s Your Surefire Ticket to The Naughty List
Santa Issues Warning: Here’s Your Surefire Ticket to The Naughty List 2560 2054 PayReel

The most effective leaders lead by example and Santa Claus has made it a point to make his worker classification process transparent. He hopes to inspire anyone who believes in the Christmas spirit to do the same. Since the jolly fellow is so busy overseeing his workshop and delighting children all over the world, he has decided to hire a partner to handle proper classification. He reported, “As our operation has grown, I’ve lost sleep over the possibility that we will unintentionally make a mistake that will take away from the time and resources we dedicate to bringing children cheer. It gives my eyes a little extra twinkle knowing this aspect of the workshop is now being handled by the pros.” Santa went on to stress the importance of proper classification for operations beyond the North Pole. 

Consequences of Misclassification: Coal, Fines, and Tarnished Tinsel

Even in Santa’s magical world, missteps can have significant consequences. Workshops that incorrectly classify elves might find themselves receiving coal in their stockings. After all, Santa will not become a hypocrite. Beyond the symbolic lump of coal, his new partner in worker classification advised Santa of other tangible repercussions:

  • Fines for each W-2 form not correctly filed.
  • A penalty equivalent to 1.5% of the misclassified elf’s earnings.
  • A tinsel tarnish fee starting at $5,000 for the first misclassified elf, escalating to $25,000 for subsequent errors.

Santa emphasizes that cutting corners in worker classification is a false economy, as the North Pole’s legal team of wise owls is more vigilant than ever. In extreme cases, offending workshop managers could find themselves confined to their gingerbread houses under surveillance.

Moreover, Santa cannot afford to have his reputation for misclassification and finding his workshop less attractive to top elf talent. In Santa’s world, reputation is as valuable as the shiniest bauble.

The Bottom Line: Ensuring a Holly, Jolly Compliance

Santa advises businesses to follow his lead and keep operations humming with holiday cheer and out of the frosty grip of compliance issues. For those businesses without a dedicated compliance department, Santa suggests partnering with a reputable partner (👋 to handle compliance issues and stay on top of regulations. Contact us today for a free risk assessment and consultation! 

In Santa’s workshop, accurate elf classification and risk management are as essential as the safety checks he conducts on his sleigh in the weeks leading up to Christmas Eve. Santa rests easier knowing his compliance partner keeps a watchful eye on changes in regulations and offers updated guidance as needed to ensure all workshops remain merry and bright. Remember, staying compliant isn’t just good business—it’s the key to spreading holiday cheer! 🎅🎄✨



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Take Our Quiz: Do You Really Understand the Difference Between Employees, Gig Workers, and Independent Contractors?
Take Our Quiz: Do You Really Understand the Difference Between Employees, Gig Workers, and Independent Contractors? 2560 1710 PayReel

Companies have various options when it comes to hiring talent. While some take the “what’s in a name?” approach and classify based on their own convenience and cost considerations, the classification happens to be of great consequence to the Department of Labor. So let’s compare three common categories of workers (employees, gig workers, and independent contractors) and how to decide which arrangement applies to your workers.

Three Common Types of Workers

1. Employees: These individuals work for a company on a regular basis, usually full-time or part-time. They are typically integrated into the company’s structure and work under the direct supervision and control of the employer.

Key Characteristics:

  • Receive a fixed salary or hourly wage.
  • Eligible for benefits such as health insurance, retirement plans, and paid time off.
  • May have taxes withheld by the employer.
  • Often have a long-term commitment to the company.

When to Engage Employees:

  • When the tasks require consistent, long-term presence.
  • When the work is integral to the core functions of the business.
  • When there’s a need for in-depth training and development.

2. Gig Workers: These workers are usually temporary and perform specific, short-term tasks or projects for a company. They are hired for a specific job or a defined period, and the relationship is often project-based.

Key Characteristics:

  • Paid for completed projects or tasks.
  • Typically not eligible for company benefits.
  • Often manage their own taxes and work schedules.
  • Offer flexibility and adaptability for short-term projects.

When to Engage Gig Workers:

  • When the workload fluctuates and requires temporary assistance.
  • When specialized skills are needed for specific projects.
  • When the company does not need long-term commitments.
  • When there’s a need for rapid scalability.

3. Independent Contractors: Self-employed individuals who provide services to a company but maintain significant control over their work. They are responsible for their own taxes, insurance, and equipment. Independent contractors (also known as freelancers, consultants, or 1099’s) have a different set of expectations than employees.

Key Characteristics:

  • Usually paid based on a contract or fee arrangement.
  • Not eligible for company benefits.
  • Have more control over their work and schedule.
  • Often use their own tools or equipment.
  • They can move regularly from client to client and business to business.
  • They are also responsible for reporting their own business income and paying self-employment taxes.

When to Engage Independent Contractors:

  • When specialized skills or expertise are needed for a specific project.
  • When flexibility is essential.
  • When the work can be outsourced without compromising quality.

Take Our Self Audit

The choice between employees, gig workers, and independent contractors depends on the nature of the work, the duration of the engagement, and the company’s specific needs. It’s essential for businesses to understand these distinctions and carefully evaluate their workforce strategy to ensure they are making the right choice for each situation. It’s a deceptively complex task. It’s important to be able to classify workers accurately. The risk of facing an audit has never been greater. Take our 5-minute worker classification self-audit here (pinky promise it’s easier and faster than any government-backed audit) or contact us with any questions.

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What California’s Private Attorneys General Act (PAGA) Means For You
What California’s Private Attorneys General Act (PAGA) Means For You 2560 1707 PayReel

California’s Private Attorneys General Act (PAGA) is a critical piece of legislation with far-reaching consequences for labor rights and business operations. With PAGA, employees have power to enforce labor laws and directly hold employers accountable for violations. We’ll discuss what this significant piece of legislature means for employees and businesses.

What’s in a Name?

The Private Attorneys General Act grants employees the right to “recover civil penalties on behalf of themselves, other employees, and the State of California.” The name itself holds a big key to understanding the act because the law effectively deputizes private individuals to act as “private attorneys general” and gives them the authority to pursue civil penalties. Under PAGA, employees can make claims regarding a wide range of labor issues, including wage and hour violations, inadequate break periods, and workplace safety concerns.

What is The Argument in Favor of PAGA?

Like any legislation, PAGA has detractors, but proponents say it has the following benefits:

  1. Increased Employer Accountability: The idea is that by giving employees power to hold employers accountable for violations that might otherwise go unnoticed, employers are held to a higher level of accountability to maintain positive workplace conditions.
  2. Deterrence of Violations: PAGA intends to serve as a deterrent against employers taking advantage of employees as the threat of substantial financial penalties and long legal battles encourages companies to comply with labor laws.
  3. Empowerment of Employees: PAGA purportedly empowers individual employees to take an active role in safeguarding their own rights. It democratizes the process of upholding labor standards by enabling individuals to seek justice without relying solely on government agencies.

How Does PAGA Affect Businesses?

Detractors says the Private Attorneys General Act presents significant challenges and drawbacks for businesses and makes it prohibitive to operate there. They also say it increases the potential for frivolous lawsuits, and a cascading list of damages.

  1. Makes Operating in California Harder: The constant threat of PAGA claims has the potential to increase financial strain. Penalties for violations can be substantial and even if businesses ultimately prevail in PAGA lawsuits, the processes can tie up internal resources and lead to collateral damage. Negative media coverage and public perception can impact a company’s brand image and customer trust. This can have long-lasting effects on customer loyalty, shareholder confidence, and overall business success.
  2. Incentivizes Frivolous Lawsuits: While most companies have internal procedures to address grievances, PAGA empowers employees to file lawsuits for relatively minor violations that might’ve been handled internally instead. Opportunistic individuals may bring forward frivolous lawsuits and exploit the system for personal gain rather than use the system to address genuine labor law violations. Such lawsuits waste valuable time and resources and also undermine the credibility of legitimate claims, therefore diluting the effectiveness of PAGA.

How Can Businesses Protect Themselves?

Understanding the implications of PAGA and taking proactive measures to protect themselves against potential claims is essential to the health of a business. Here are some strategies companies can adopt to safeguard their interests while ensuring compliance with labor regulations.

  1. Comprehensive Compliance Practices: The foundation of protection against PAGA claims lies in ensuring that your business is fully compliant with labor laws and regulations. Establish comprehensive compliance practices that include regular audits of your HR policies, wage and hour practices, employee classification, and other pertinent areas. By identifying and correcting potential violations early, you can mitigate the risk of PAGA claims arising from inadvertent errors.
  2. Transparent Documentation: Maintain thorough and accurate records of all employment-related activities, including payroll, working hours, breaks, and employee classifications. Transparent documentation not only demonstrates your commitment to fair practices but also serves as invaluable evidence in case a PAGA claim arises. Consistently documenting policies, training sessions, and communication with employees can help establish your company’s efforts to comply with labor laws.
  3. Effective Employee Communication: Clear and open communication with your employees is key to preventing PAGA claims. Ensure that your employees are well-informed about their rights, responsibilities, and grievance procedures. Create a culture that encourages employees to raise concerns internally before resorting to legal actions. Having a well-defined internal process for addressing grievances can help resolve issues before they escalate into legal disputes.
  4. Regular Training and Education: Invest in training programs that educate both management and employees about labor laws and workplace policies. Regular training sessions can help prevent unintentional violations and foster a proactive approach to compliance. By demonstrating your commitment to keeping all stakeholders informed, you create a stronger defense against PAGA claims.
  5. Engage a Compliance Partner: Given the complex nature of labor laws and the nuances of PAGA, seeking support from experts is wise. They can provide insights into potential vulnerabilities and help you implement strategies to mitigate risks. If handling all of these details is beyond your interest or bandwidth, you can engage an Employer of Record that is in position to do all of the above and indemnify you of many of the risks associated with engaging employees in California. Contact us to discuss your potential vulnerabilities as well as how you can protect yourself.

The Bottom Line

The Private Attorneys General Act (PAGA) has reshaped the landscape of employee rights and employer responsibilities in California. While it does present potential challenges for businesses, adopting a proactive and comprehensive approach and engaging the right partners can significantly reduce the risk of PAGA claims.

 

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Here’s What to Think About if You’re Expanding Your Business (And Therefore, Your Payroll)
Here’s What to Think About if You’re Expanding Your Business (And Therefore, Your Payroll) 2560 1707 PayReel

If you’re planning to expand your business, one of your top priorities should be making sure you’re in position to classify and pay employees and independent contractors properly. This is especially important if you’re looking to hire people in any state without any red tape. Today, we’ll talk about what it takes to run payroll and when it’s helpful to engage a partner.

Doing Payroll Right

Since payroll is always a complex, high-stakes business, it’s worth investing anything required on the front end to make sure you do it right. Whether you train an in-house team or engage a partner, they need to be in position to classify correctly, stay on top of laws as they change, identify and respond to the different tax requirements, and have a system in place that allows the process to be simple, accurate, and fast. This helps you avoid future fines and legal battles.

Doing it right means doing the following:

  1. Learning local employment laws. This includes identifying regulations regarding working hours, holidays, sick pay, insurance, and more and having a (preferably automated) system in place to follow those rules.
  2. Onboarding workers. This includes collecting information such as name and date of birth as well as tax forms, background checks, benefit status, and work eligibility.
  3. Storing and securing data. Since you’re dealing people’s personally identifiable information (PII), you MUST have a way to secure that highly-sensitive data. The fines for mishandling data are serious, so you should be equally serious.
  4. Authorizing payments and ensuring your employees get paid accurately.  This includes identifying the appropriate deductions/taxes, keeping accurate records, paying on time in every location, sending out notifications, reporting as required to government institutions, etc.
  5. Having a system in place to identify and adjust to changes. You don’t always have time to wait weeks to adjust to new laws. Things evolve rapidly, so your system needs to be ready to evolve just as rapidly.
  6. Staying compliant. Laws are different from place to place and do change frequently, so your payroll management software solution should have systems in place to ensure  compliance wherever you operate.

Would Outsourcing Payroll Benefit Your Business?

Outsourcing payroll is especially valuable in certain situations. If a company needs to hire employees in multiple states, is growing rapidly, and/or needs to hire temporary workers frequently, engaging an Employer of Record (EOR) could be a game changer. An EOR mitigates compliance risks, increases payroll efficiency, and eases the administrative burdens of managing a workforce.

The Bottom Line

Payroll is one of the most complex and challenging aspects of operating a business and should be given appropriate attention by every business. When a company is growing, payroll is one of the most important aspects of business to have in good working order. The right people on your in-house team or the right partner are essential. If you think a partner would be beneficial to your business, reach out! Relax: We got it.

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The DOL Has Its 👀on YOU: Let’s Talk About Audit Prevention
The DOL Has Its 👀on YOU: Let’s Talk About Audit Prevention 150 150 PayReel

If you employ any number of independent contractors, the Department of Labor (DOL) has an interest in your business. Yes, yours. You should take it as seriously as they do.

Hiring such workers is attractive to companies looking for outside creative resources as well as those that have varying, seasonal, or event-based needs. It can help keep overhead low and is a great way to outsource work that is not central to their main line of business. It can also be a great way to find top talent on a specific, project-oriented basis.

Sounds nice, right? But there’s a big catch.

The legal definition of an independent contractor is constantly being redefined through legal means. While it can vary from state to state, it is trending toward a narrower definition across the board. These guidelines are meant to prevent firms from misclassifying would-be employees, thereby avoiding a bounty of state and federal taxes.

Is your IC really an independent contractor?

It is a deceptively complex question. It’s important to confidently be able to answer “yes”, because the risk of facing an IRS audit has never been greater. Take our 5-minute worker classification self-audit here (pinky promise it’s easier and faster than any government-backed audit).

As self-employed workers, independent contractors (also known as freelancers, consultants, or 1099’s) have a different set of expectations than employees. Businesses engage them to do a specific job for an agreed-upon rate. Unlike a regular employee, they can move regularly from client to client and business to business. They are legally entitled to fewer company benefits. They are also responsible for reporting their own business income and paying self-employment taxes.

Best Practices When Engaging Independent Contractors:

  • Engage contractors with an established business entity, name, and EIN
  • Engage contractors who have multiple clients
  • Have every IC provide a certificate of insurance, including general liability and worker’s comp insurance
  • Have a signed project agreement specifying project length, compensation and liability
  • Avoid training the worker, directing their work responsibilities, providing equipment, or defining their work schedules

Prevent an Audit With Airtight Contractor Payroll Processes

Audits are costly and time-consuming even for businesses that do everything by the book. How much are you willing to pay in time and hassle for employee misclassification? Engaging the right payroll partner mitigates most of the risks associated with engaging independent contractors. At PayReel, we assess each employment situation individually to make sure you are in complete compliance. Do you have questions about independent contractor status? You can trust PayReel to help you make the determination.

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Direct Sourcing: How to Walk The Compliance Tight Rope
Direct Sourcing: How to Walk The Compliance Tight Rope 2560 1707 PayReel

Direct sourcing allows businesses to place workers as needed and on a temporary basis. One of the biggest benefits is that they get to keep the best workers in the pipeline between projects and tap their pool of talent as needs arise. Direct sourcing is a great tool for managing a contingent workforce, but companies must remain vigilant to stay compliant.

Direct Sourcing And Risk & Compliance 

While direct sourcing is an incredible asset to companies, it’s important to keep risk, compliance, and payroll top of mind. Mitigating risk requires specialized skills, a great depth of knowledge, and a department with enough bandwidth to understand and follow rules on a state and federal level.

Errors can be incredibly costly. Companies can be subject to heavy fines when they classify workers incorrectly or make mistakes with payroll. In addition, companies can face damage to their reputation and end up directing resources (including time) that could otherwise be directed elsewhere. Worker classification and payroll rules vary from state to state and on a federal level as well.

Since regulations change all the time, hiring organizations must do due diligence to make sure they keep their practices compliant and their businesses in good standing. Any company using direct sourcing simply must also include effective worker classification and payrolling services as a part of its plan.

When is it Time to Engage a Partner?

For companies that use direct sourcing, engaging a partner for risk compliance, worker classification, and payroll can be an incredibly sound business move. A partner can fill in the gaps to fill payroll demands and other contingent workforce management. Companies without a specific department to fill these roles will be well served by engaging a partner with the bandwidth and skills to handle everything related to risk, compliance, worker classification, and payroll for a contingent workforce.

The best partner will be able to handle every type of worker a business employs. When direct sourcing talent, many businesses find an Employer of Record (EOR) that takes care of all the administrative details of managing a contingent workforce is an indispensable part of their team.

If you’re considering whether an EOR would be helpful to your business, let us know! This is our jam.  

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Pop Quiz: Is Your Industry The Latest to Make Misclassification News?
Pop Quiz: Is Your Industry The Latest to Make Misclassification News? 2560 1707 PayReel

Accurate worker classification is important in every industry and for every company–large or small. That said, any business that relies on a contingent workforce is especially vulnerable. The Biden administration’s decision to rescind the Worker Classification Rule made it easier for workers to argue for minimum wage and overtime protections/compensation. We’ve all seen headlines for the big companies, but companies without recognizable names are facing the same challenges. Smaller companies may try to take the “blissful ignorance” route and face costly consequences later. Ride share companies frequently make headlines, but lately, we’ve seen multiple companies in the healthcare industry end up in hot water.  

Why is it so Easy to Make Mistakes?

The gray area between W-2 employees and independent contractors is getting increased attention from the Department of Labor. Every time a new piece of legislation passes in this area, it seems to make the distinction between workers less clear. But one aspect of the trend is clear: It’s getting harder and harder to accurately and safely classify workers as independent contractors. With the big headlines, you’ll find big fines. They’ve cost Uber over $100 million in settlements, with some cases still pending. Still, while it may be tempting to think of this as a big company problem, it’s not true.

Between increasingly-savvy workers and a Democratic-led administration, smaller companies are vulnerable to big problems, too. For example, this at-home healthcare services provider was recently found responsible for over $358K in back wages and this therapy firm’s $9 million bill packed a big punch.

The Bottom Line

It just isn’t worth it to try to avoid the rules or get away with not knowing them. Ignorance doesn’t hold up in a court of law. Paying close attention to accuracy pays dividends. At PayReel, compliance comes first. We classify your employees properly, and we also pay them properly so that you can hire who you want exactly when you want them. If gray areas aren’t your thing and the term “lawsuit” makes your heart skip a beat—relax, we got it. Contact us around the clock at 303-526-4900 or email us here.

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Do You Engage Independent Contractors in California? Be Afraid. Be Very Afraid.
Do You Engage Independent Contractors in California? Be Afraid. Be Very Afraid. 2560 1707 PayReel

It truly is a tightrope walk doing business in California, especially if you engage independent contractors. Still, you don’t panic. Let’s talk about what makes California high risk (hint: worker classification tops the list), what’s at stake, and how businesses can protect themselves. 

Why is California Considered High Risk? 

California is considered the riskiest of the risky states for doing business. The Golden State is often the first to legislate an issue surrounding employment and other states often follow suit with similar laws. Whether you do business in the state or not, what happens there will affect you in one way or another. 

In addition to California’s worker classification rules (which are some of the most stringent in the country and where our focus will be today), California requires employers to walk a narrow path when it comes to sexual harassment training, privacy protections, meal wages, and more. 

Worker Classification

This is where California’s rules affect employers the most because it’s where it’s hardest for companies to classify workers as independent contractors. California’s approach to worker classification (among other topics) purportedly intend to protect workers and provide “the labor law protections to which they are entitled.” In addition to the federal legislation, states have free reign to make some of their own rules. True to form, California has some of the strictest requirements surrounding worker classification and it’s important for companies to pay attention because violators can expect to be subject to strict penalties such as fines, possible jail time, and damage to their reputations. 

What Makes Worker Classification Extra Tricky in California?

When California replaced the long-standing Borello test with the ABC test, it eliminated some of the gray area in deciding whether a worker is an employee or not. Workers can only be considered an independent contractor if all of the following apply:

(A) that the worker is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact;

(B) that the worker performs work that is outside the usual course of the hiring entity’s business; and (C) that the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed.

This is the narrowest definition of an independent contractor to date and puts more pressure on point “B” than ever before.

What’s at Stake For The Government?

Whenever a government agency legislates an issue, it’s reasonable to ask what the stakes are and how much attention they’ll give it. In this case, there is a ton of money on the line. To date, determining the differences and properly classifying workers have been highly complicated tasks, depending on factors such as the ability to hire or fire a worker, the kind of occupation, the method of payment, location and more. According to the court’s ruling in the Dynamex case, “the misclassification of workers as independent contractors rather than employees is a very serious problem, depriving federal and state governments of billions of dollars in tax revenue.”

The government’s concerns center around the fact that:

  • Independent contractors write off business expenses and may underreport income
  • Small businesses can avoid certain taxes with fewer W2 employees
  • ICs are more difficult to track and tax accurately than W2 employees

What Does it Mean For Business?

Some employers like this way of structuring worker classification because in theory, it gives workers more ownership in the company’s success. Others say it makes their business model unsustainable.

It’s point “B” of the ABC test that can be most challenging to the way many businesses operate. It states that a worker must perform “work that is outside the usual course of the hiring entity’s business” to be classified as an independent contractor. 

Some companies have restructured operations completely to avoid hiring more W2 employees (new laws have a way of precipitating new ways to get around said laws). Another way to avoid reclassifying is simply to operate business as usual and wait to be challenged. Smaller companies have been known to get away with this approach indefinitely.

What About The Workers?

Still, some independent contractors have been unhappy with the changes and expressed concern for their livelihood. Even if all the perks afforded an employee (healthcare, time off, etc.) bring them close to their original pay in practice, their paycheck may look a lot smaller on the surface. Many industries have been granted exemptions from the ruling, indicating that, as always, there is no simple cut and dry answer to an issue this complicated. 

Independent contractors set their own schedule and manage their own businesses. While independent contractors are still responsible for paying taxes, they can also take advantage of many write-offs. Along with the perks, they do have the responsibilities that come with owning their own business. They run their own books, pay quarterly taxes, advertise, purchase their own equipment, and deal with the seasonal nature of the biz. Independent contractors also don’t get paid time off and are responsible for purchasing their own health insurance.

Some workers prefer the stability and possibility for advancement that come with having a greater presence at the office and familiarity with the ins and outs of the company.

How Can Companies Mitigate Risk?

Unless a company is made up 100% of full-time employees, this subject is relevant. Mistakes could result in fines, back taxes, and even jail time. The first step is to stay well on top of worker classification rules. There are exemptions to the ABC test and they continue to evolve. Independent contractors fall outside the wage order’s protections so even some “employees” could still potentially qualify as independent contractors for all other purposes. Stay on top of classification news and how these changes play out in practice will continue to shake out in the courts and in the market going forward. Stay ahead of the game to see how these changes affect your business. California is embarking on the real-time evolution of the economy.

What Are The Stakes for Mistakes? 

Big companies like Uber make headlines for their missteps and pay equally big fines for their worker classification choices. Still, it can be a costly mistake to think it’s only the big companies that face consequences. By rescinding the Trump Administration’s “Worker Classification Rule,” the Biden administration made it easier for workers to argue for minimum wage and overtime protections/compensation. In addition to having to pay back 100% of the matching FICA taxes they would have paid had they classified the worker correctly up front, employers can end up subject to additional penalties such as the following:

  • $50 fine for each W-2 form they failed to file
  • A penalty equal to 1.5% of the employee’s wages 
  • $5,000 penalty for the first misclassified employee and up to $25,000 for each subsequent violation

Suffice to say, misclassifying workers does not save money in the long run. Perhaps scarier than the possibility of monetary damages, misclassification has landed some business leaders under house arrest. 

In addition, class-action lawsuits, failed audits, and negative headlines can damage a company’s reputation to the point where both workers and consumers are hesitant to engage with the company. It’s just not worth it!     

Bottom Line 

The most common mistakes when engaging contractors in California are misclassifying workers, (of course!), being lax about training requirements or privacy, and meal wage/overtime errors. 

As the economic landscape shifts and independent contractors rise in prevalence, the financial stakes and potential for missed revenue rise, too. In response, government agencies have been ramping up their focus on the subject. The IRS and DOL are not alone. States are joining the fray, attempting to crack down on misclassification while tightening the reins on training requirements, and payroll guidelines.

Where the money goes, lawyers follow. There’s big money in class action lawsuits and new cases are always being filed. While fear is never productive, you should be very, very conscientious when engaging independent contractors in California. Companies must be very vigilant to protect your business, stay compliant, and reduce the risk for fines and unpleasant attention from the IRS.

When is Engaging a Partner a Good Idea?

Examine your options: Working with an Employer of Record (EOR) or Professional Employer Organization (PEO) is standard best practice in this evolving freelancer economy. While both provide payroll and insurance services, the differentiating factor is that an EOR relieves employers of much of the regulatory risk involved in working with independent contractors while a PEO operates as a co-employer and does not assume the employment risk.

If you don’t have the in-house team to do it yourself, it’s worth considering working with a partner. The bottom line is that doing business in California is complicated and the consequences of errors can be immense. While the onus is on employers to classify workers correctly and stay in line with the state’s changing requirements, it’s possible to navigate a rocky landscape with relative ease.

In our world, accurate worker classification and top-notch risk management when it comes to overtime, meal wage, and other laws are always the priority. We are the first to be aware when change is in the air. We track rules in every state as well as on a federal level and offer services to help clients stay compliant. 

If you think a partner would help your business, contact us now. 

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