In March 2024, the Department of Labor (DOL) introduced new rules for worker classification, adding another layer of complexity to an already challenging area for businesses. This blog post will summarize the new DOL rules, compare them to existing IRS and tax rules, and offer guidance on managing compliance with both frameworks.
The DOL's new approach introduces a six-factor "economic reality" test to determine whether workers are economically dependent on their employers. This represents a significant shift from the previous two-factor test and aligns more closely with traditional employment analysis. The six factors are:
This new rule generally makes it more challenging to classify workers as independent contractors, reflecting a broader trend towards expanding the definition of "employee."
While the DOL and IRS both deal with worker classification, they approach it from different angles:
Focus:
Classification Framework:
Emphasis on Control:
Business Integration:
Given the complexities of these overlapping but distinct frameworks, businesses must take a careful approach to worker classification:
The landscape of worker classification is becoming increasingly complex, with potentially severe consequences for misclassification. By understanding the nuances of both DOL and IRS frameworks and taking a proactive approach to compliance, businesses can navigate these challenges and minimize their risk exposure. If in doubt, err on the side of treating the worker as an employee.
A common question business owners ask is:
Do I classify a worker as an independent contractor or as an employee?
Filing workers as independent contractors will result in fewer taxes for the business. But, the consequences of making the wrong choice can be costly. More on that later.
The US Department of Labor (DOL) approved final rules that would have become effective on March 8, 2021. President Biden has placed a freeze on any Trump-era rules that have not gone into effect. A leader of a Biden-designated agency must review or approve the rule before its next steps. The delay lasts 60 days from January 20, approximately March 20, or longer.
Businesses are facing a variety of federal, state, and local laws. These laws govern how to determine employee or independent contractor status. When faced with these rules, which should we follow? Which are we subject to? How do we make the decision?
This new Department of Labor rule may be a game-changer for many.
These new rules are similar to the IRS common law rules which provide evidence of the degree of control and independence. They fall into three categories:
Does the company control or have the right to control what the worker does and how the worker does their job?
2. Financial:
Are the business aspects of the worker’s job controlled by the payer? Business aspects may include:
a. how the worker is paid,
b. whether expenses are reimbursed,
c. and the provision of tools or supplies.
d. Consider what other state laws, local or other employment, may be in effect.
3. Type of Relationship:
Are there written contracts or employee type benefits? For example, a pension plan, insurance, vacation pay, etc. Will the relationship continue? Is the work performed a key aspect of the business?
If the worker has an economic dependency on the business, then they likely classify as an employee, not an independent contractor.
This is all so confusing, you say. Do we follow the Department of Labor, or do we follow IRS or do we follow state rules? We're told that the answer lies with whichever law offers the best benefit to the worker. The answer requires an analysis of all laws which may affect your business. And then determine which law provides the worker with the greatest benefit.
This is not good news.
Every state has its own Labor Department rules and you may have to track many states at the same time. This is particularly true if you have workers located in California. Not to mention the DOL and IRS and other federal laws. Washington is not making it easier for us.
The consequences of misclassifying a worker can be devastating to a business.
You classify a worker as an independent contractor. But, later you determine that the worker was an employee. The government can require you to pay the taxes you should have withheld, as well as penalties, interest, and the worker's share of taxes. We have seen worker misclassifications almost bankrupt businesses. This is an area of the law that you must strictly adhere to and consider.
a. they supervise their own work,
b. set their own hours,
c. are not economically dependent upon you,
d. are provided a 1099 at year-end, and
e. that no taxes will be withheld, etc.
f. but be aware that a contract will not protect you if the facts state otherwise.
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