Businesses that use absolute contractors, beware – the Administration of Activity is watching. 1099 contractors — so called afterwards the tax anatomy abounding out back advertisement assorted assets — are absolute from the hiring company. A lot of businesses like absolute contractors because, with them, the hiring close doesn’t accept to anguish about denial amount taxes, accouterment healthcare, or advantageous overtime. But abounding accept amorphous to feel businesses booty advantage of 1099 contractors to save money. Companies like Uber, FedEx, and alike NFL teams are demography blaze for application 1099 labor.
In September of 2014, the DoL appear it was dispersing $10 actor in grants to advice 19 states action agent misidentification. And aftermost ages the administration connected its war adjoin misclassification with the absolution of ‘Administrator’s Interpretation 2015-1’. Though non-binding, that certificate finer expands the “economic realities test” generally acclimated back courts adjudicator whether a artisan is an absolute architect or a accepted employee. The bulletin is clear: “Most workers are advisers beneath the FLSA.” Any business that affairs jobs to 1099 workers charge reevaluate the ambit of that accord or accident actuality slapped with austere penalties and fines. Thankfully, Interpretation 2015-1 makes it easier to analyze amid a architect and an employee.
How important is the artisan to the company?Nearly anyone assassin to ample a role basic to the operation of the hiring aggregation charge be classified as an employee. Note that the catechism is not whether the artisan is calmly replaced or if the job is difficult – it’s the accent of the job they were assassin to do. Booty a agriculture company, for example. The business designs, creates, and maintains yards. A above allotment of that is mowing lawns. After addition to mow those lawns, the agriculture aggregation loses customers. Best bodies can mow a lawn, but that doesn’t beggarly the aggregation can amusement the being they appoint to mow as an absolute contractor. But if they asked addition being to architecture some arrangement and behest software for them, that being could be an absolute contractor, as what they do for the company, while complementary, is non-vital.
Is there an apprehension of permanence?Independent contractors charge be independent. That is, they should artlessly abandon any bearings wherein they would depend alone on one job. Working with assorted companies is a assurance net – if one job avalanche through, it’s okay. But if the apprehension of abidingness is created, that artisan should be reclassified as an employee. A business close that decides to aggrandize into agreeable business commonly needs a blogger. That blogger isn’t basic to aggregation – afterwards all, the close was operating after one afore – and may actual able-bodied authorize as an absolute contractor, as continued as they abide independent. But if the business close asks that blogger to allot added time to the firm’s projects and to apprentice how to use the company’s CRM system, it’s adopting dependence. That could about-face the blogger from absolute architect to accepted employee.
Do they assignment for the company, or is the aggregation a client?Actual absolute contractors run their own business. That’s why they address and pay self-employment taxes, set their own hours, accommodate contracts, and advance in their own equipment. While the DoL fabricated it bright that ascendancy is not the sole band amid contractors from employees, that agency is still one of the best advantageous to accurately classifying a worker. A aggregation that, in any way, sets area and how assignment will be done is authoritative an employee. Careful assignment is a abundant analogy for this rule. A lot of abate admiral will arrangement a cleaner to occasionally tidy aggregate up. That cleaner is non-vital, and best of the time they assignment with assorted companies, as a baby appointment doesn’t charge to be bankrupt every day. But in adjustment to allocate the cleaner as an absolute contractor, the hiring appointment charge be a client, not an employer. The aggregation can’t acquaint the babysitter they charge appearance up every Tuesday night and alarm in from 7-9. The babysitter can acquaint a business that is back they are appointed to apple-pie an office, but that’s about as far as it can go. A aggregation that wants to set adamantine hours for careful assignment charge appoint an employee.
The six-factor bread-and-butter realities analysis is still the go-to guideline, but the DoL’s description of those standards broadens anniversary factor’s reach. The guidelines abide to adjudicator bread-and-butter dependence, the absolute body of this controversy. A artisan charge be in business for his or herself to authorize as a 1099 contractor. Already that artisan depends on, or is accepted to depend on, one, distinct client, the attributes of the accord shifts. And already that happens, they are advantaged to the aforementioned protections and rights afforded to any accepted employee.
Deborah Sweeney is the CEO of MyCorporation.com, an online acknowledged filing account for entrepreneurs and businesses. Follow her on Twitter @mycorporation.
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