Many businesses struggle with understanding the difference between having employees vs independent contractors, also called 1099 subcontractors. Most small business owners would prefer to have everyone classified as an independent contractor to avoid all the friction that the government places on employers. Businesses that use independent contractors are not required to provide them benefits, withhold federal, state, and FICA taxes, match the employees FICA contributions, or pay for workers’ compensation, or unemployment insurance. However, the IRS would rather that businesses have employees so that a single employer is responsible for all the withholdings as opposed to multiple independent contractors.
Moreover, the 2017 Tax Act stipulates that individuals who are independent contractors can qualify for a 20percent tax deduction on their 1099 income as long as they are engaged in a trade or business and make less than $157,500 as an individual or $315,000in a business owned by couple filing jointly. Since the new tax law potentially rewards independent contractors, the IRS expects many businesses to attempt to reclassify employees to an independent contractor.
Keeping in mind that the IRS considers a person to be an employee unless proved otherwise, the IRS has developed a 20-question test to determine if a person should be classified as an employee or an independent contractor. “Yes” answers most likely indicate that if challenged, the person will be classified as an employee and not as an independent contractor by the IRS.
1. Is the worker required to comply with the employer’s instructions about when, where, and how to work?
2. Is training required? Does the worker receive training from or at the direction of the employer, includes attending meetings and working with experienced employees?
3. Are the worker’s services integrated with the activities of the company? Does the success of the employer’s business significantly depend upon the performance of services that the worker provides?
4. Is the worker required to perform the work personally?
5. Does the worker have the ability to hire, supervise and pay assistants for the employer?
6. Does the worker have a continuing relationship with the employer?
7. Is the worker required to follow set hours of work?
8. Does the worker work full-time for the employer?
9. Does the worker perform work on the employer’s premises and use the company’s office equipment?
10. Does the worker perform work in a sequence set by the employer? Does the worker follow a set schedule?
11. Does the worker submit regular written or oral reports to the employer?
12. How does the worker receive payments? Are there payments of regular amounts at set intervals?
13. Does the worker receive payment for business and travel expenses?
14. Does the worker rely on the employer for tools and materials?
15. Has the worker made an investment in the facilities or equipment used to perform services?
16. Is the payment made to the worker on a fixed basis regardless of profitability or loss?
17. Does the worker only work for one employer at a time?
18. Are the services offered to the employer unavailable to the general public?
19. Can the worker be fired by the employer?
20. Can the worker quit work at any time without liability?
Misclassifying an employee as an independent contractor can prove to be a very expensive mistake for an employer. The employer may not only have to pay additional wages but fines and fees. Then there is the matter of back workers’ compensation and unemployment taxes.
Worker’s Compensation: An employee who is hurt on the job can receive benefits under workers’ compensation as an employee. However,