Companies using independent contractors to perform work normally performed by employees beware; state and federal governmental taxing authorities are challenging those classifications in an effort to increase tax revenue on wages that are not properly reported. According to a recent article by the Associated Press, "the Internal Revenue Service and 37 states are cracking down on companies that try to trim payroll costs by illegally classifying workers as independent contractors rather than as full employees."
In September 2009, the IRS announced that it would (beginning in February 2010) audit at least 6,000 randomly-selected companies to investigate employment tax compliance. Among other things, one of the areas targeted is worker misclassification as independent contractors. Companies may misclassify workers for a variety of reasons. Companies have greater tax withholding obligations and employment tax liabilities with respect to employees. Moreover, independent contractors are not entitled to overtime compensation, unemployment insurance and other employee benefits. It is estimated that classification as an employee rather than independent contractor may add up to 30 percent to the labor cost of the worker. The Government Accountability Office estimates that employee misclassification results in an estimated underpayment of $2.72 billion in social security, unemployment insurance and income taxes by companies annually.
The 2011 federal budget proposes up to $3.8 trillion in spending measures to eliminate legal incentives for employers to misclassify employees, such as using budgeted funds to investigate, prosecute and penalize employers misclassifying employees as independent contractors and provide states with competitive grants to boost enforcement initiatives targeting misclassification. There is also legislation introduced in Congress, the Taxpayer Responsibility, Accountability and Consistency Act of 2009, designed to make it more difficult to classify workers as independent contractors and to increase penalties for such misclassification.
Secretary of Labor Hilda Solis also announced that her Department will hire more than 90 new wage and hour investigators and enforcement personnel to target worker misclassification. According to Secretary Solis:
When employees are misclassified as ‘independent contractors,’ they are deprived of benefits and protections to which they are legally entitled. For example, independent contractors do not receive overtime and are ineligible to receive unemployment benefits. The FY 2011 budget includes an additional $25 million for a Misclassification Initiative to target misclassification with 100 additional enforcement personnel and competitive grants to boost states’ incentives and capacity to address this problem.
With heightened Executive and Legislative enforcement efforts, companies using independent contractors should be sure their relationships have been vetted and are in strict compliance with the labor and tax laws. The Departments of Labor and Treasury will surely be watching and scrutinizing those relationships.
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