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…


Nov 20, 2025

Creating Good Vacation Policies

It's a controversial topic: How much paid time off should you give your employees? Smart companies give more than the minimum, knowing that some employees value time off even more than a salary raise. Read through for some thoughts on a good vacation policy.


Nov 19, 2025

6 Quick Tips for an Employee Review Process

Employee reviews are often seen as monotonous, checklist-based meetings that may or may not end with a raise. Read through for six quick tips to elevate your company's culture through a smarter employee review process.


Nov 18, 2025

IRS Makes Retirement Plan Changes for 2026

As it does every year, the IRS has announced a variety of changes to retirement plans. In brief, it has raised the limits on how much savers can put away, but there are many other adjustments. Read through for a summary of the key provisions.


Nov 17, 2025

How To Keep Payroll Secure

Are you worried about keeping your payroll processes secure when partnering with a payroll provider, professional employer organization or employer of record? Read through for insight into how you can improve your security measures while adhering to regulatory compliance.


Oct 23, 2025

Just What Is Key Person Insurance?

Curious about key person insurance? It's essentially when the company acts as the beneficiary and pays the premiums. Read through to learn how this insurance product can help your business.


Oct 22, 2025

General Advice When You Have Freelancers

Are you working with freelancers? It's important to understand how to pay them, which all starts with classifying them based on their employment status. Read through to learn how to avoid misclassification.




More News & Press can be found in our Archive.