Mar 11, 2024

How NOT to Misclassify Employees

In how many ways can you misclassify employees? It's important to know given, since the rapid growth of an independent workforce means increased scrutiny from government agencies to ensure proper classifications. Read through for clarifications that will enable you to avoid legal risks and repercussions.

 

So, what's the big deal? Misclassification is considered wage theft, whether you knowingly or accidentally misclassify employees. It could put your business at risk of an IRS audit for back taxes, severance and health care coverage for misclassified workers, in addition to legal fees, reputation damage, and even criminal and civil penalties.

Let's enumerate some misclassifications and their fallout:

  • Payroll calculations involve hours worked, paid time off and deductions. With so much data to manage, you might accidentally pay your employees the wrong amount. In other words, overpayment or underpayment of wages can occur. Note that state requirements may differ from federal law, so check with your state for the most updated information.
  • One of the most common misclassifications is related to whether the employee should be exempt from overtime or not. Here's where the Fair Labor Standards Act comes in: All employees must receive overtime pay for any hours worked over 40 hours per week, unless they are classified as exempt. Classifying a nonexempt employee as exempt opens your organization to FLSA-related fines while causing an employee to miss out on overtime pay.
  • An individual is classified as an independent contractor rather than an employee. It may be tempting to do so as you work to reduce labor costs to avoid paying payroll taxes and providing benefits, but it can have serious consequences. This looks like a great workaround to rules governing minimum wage, overtime pay, workers' compensation and unemployment insurance, as well as job-protected leave. But the legal consequences of pretending an employee is a freelancer are very serious.

In 2019, the wage-and-hour division of the Department of Labor recovered $322 million in back pay for misclassified employees. Misclassifying workers could create trust issues among your employees. It can also cost your company a mint; misclassified workers, besides losing morale, may be able to take legal action, and your company will face financial penalties and legal fees.

Do it right

Want to avoid payroll errors? Many states have adopted the ABC test to determine employee status. The individuals being classified generally must meet all aspects of the rubric. The individuals are independent contractors if

  • They work by themselves, that is, not under the employer's control. (A = Alone)
  • They maintain their own place of business. (B = Business)
  • They work at an established trade and exercise control over their own schedule and method of operation. (C = Control)

That's a very general series of conditions; other rules may apply. However, it's a good place to start. Meanwhile, there are other things companies can do.

  • Establish clear policies for payroll.
  • Conduct an internal audit on your documentation process. Check state laws.
  • Train managers and HR staff to correctly classify employees and independent contractors and to spot potential misclassification issues.
  • Carefully document any changes you make.
  • File Form SS-8, Determination of Worker Status for Purposes of Federal Employment Taxes and Income Tax Withholding.
  • To be safe, treat the worker in question as an employee until you know otherwise for sure.
  • Work with legal and employee classification experts, talent acquisition specialists and/or employment consultants.

Worker roles can evolve over time, as do the rules around worker classifications. It's a good idea to review each worker's classification annually and adjust as needed. You can work with a firm that specializes in independent contractor compliance and engagement to help your company meet compliance standards, reduce misclassification risk and successfully manage independent workers.

If you process payroll yourself, it can be challenging to keep up with new laws and stay compliant. According to the IRS, nearly 30% of employers make payroll errors each year, with the number jumping to 40% for small-to-mid-sized businesses. The average penalty for an incorrect payroll filing is $845. Stay informed of the latest payroll laws to avoid costly mistakes..

©2024


 

MORE RECENT NEWS…


Sep 25, 2025

Social Security Fairness Act and Your Benefits

The Social Security Fairness Act repeals two long-standing rules that reduced Social Security benefits for many government and public sector workers. Read through to learn more about the act and whether these changes affect you.


Sep 24, 2025

Welcome Aboard: Tips for Successful Employee Onboarding

Congratulations! You've finally completed the demanding hiring process and you've made the right hire. You are now ready to welcome a new member to the team. Read through for some pro tips on best onboarding practices for the first day at work and beyond.


Sep 23, 2025

What Are the Best Payroll Practices?

Are you curious about the idea of a streamlined payroll process? It's a great way to make sure your entire payroll department is on the same page and operating with the same standards in mind. Read through for insights into the best payroll practices.


Sep 22, 2025

Know the Rules for Reimbursing Employees

When reimbursing employees for work-related expenses, are you using an accountable plan or a nonaccountable one? The difference affects how you report the payments and how your employee is taxed. Read through to learn the IRS rules and how to stay compliant.


Aug 29, 2025

Silver Workers: No Substitute for Experience

Once, employees approaching retirement age could look forward to a long, relaxing post-work life. For much of the 55+ crowd, this is no longer the case, with many forestalling retirement for as long as possible. Read through for advice on employing silver workers in your organization.


Aug 28, 2025

Show Me the Money: Creating a Salary Policy

For any company to treat their employees with respect and fairness, it needs to have a transparent pay equity policy in place that is shared with all employees. Read through to understand why creating pay equity is beneficial to your organization.




More News & Press can be found in our Archive.