by Felisha McDougald on Nov 2, 2018
**if you are unsure default to Employee status**
For insurance purposes, this can make a big difference in both General Liability rates, and Work Comp rates. IF you 1099 a contractor, ask for a copy of his Work Comp, as this is the only document that will ensure that YOU cannot be held liable for an injury or additional premium associated with this contract.
The distinction between employee and independent contractor is an important one under US tax law. Common law rules are usually applied and the relationship between the “worker” and the “business” has to be evaluated. In the evaluation of the relationship between the “worker’ and the “business”, “the degree of control and independence” in the relationship is determining. As evidence of the “degree of control and independence”, the following are examined:
If the worker receives a lesser amount of instructions regarding what should be done, but not how it should be done, the worker could be viewed as an independent contractor (instructions about time and place may be less important than directions on how the work is performed). Training about required processes and methods provided by the business may suggest that the worker is an employee as these types of instructions indicate that the business wants things done in a certain way.
If You Are an Employee
Your employer must withhold income tax and the worker’s portion of social security and Medicare taxes as well as pay worker’s social security, Medicare, and unemployment tax on wages and distribute Form W-2.
If you are an Independent Contractor
A business may be required to issue you a Form 1099-MISC (Miscellaneous Income) to report what you have been paid during a year. In turn, an independent contractor is responsible for paying its own income tax and self-employment tax (Self-Employment Contributions Act – SECA). A business does not withhold taxes from an independent contractor’s pay. Independent Contractors need to make estimated tax payments during the year to cover their tax liabilities.
Does it make a difference for the business if you are and employee or an independent contractor?
Businesses tend to prefer workers as independent contractors rather than employees. It is estimated that classifying workers as independent contractors can save a business 20 to 30 percent. A recent ruling by the California Supreme Court (https://scocal.stanford.edu/opinion/dynamex-operations-west-inc-v-superior-court-34584) noted that:
“if a worker should properly be classified as an employee, the hiring business bears the responsibility of paying federal Social Security and payroll taxes, unemployment insurance taxes and state employment taxes, providing worker’s compensation insurance, and, complying with numerous state and federal statutes and regulations complying with numerous state and federal statutes and regulations governing the wages, hours, and working conditions of employees. The worker then obtains the protection of the applicable labor laws and regulations. On the other hand, if a worker should properly be classified as an independent contractor, the business does not bear any of those costs or responsibilities, the worker obtains none of the numerous labor law benefits, and the public may be required under applicable laws to assume additional financial burdens with respect to such workers and their families”.
The ruling also states that: “misclassification of workers as independent contractors rather than employees is a very serious problem, depriving federal and state governments of billions of dollars in tax revenue and millions of workers of the labor law protections to which they are entitled”.
Don’t be a victim of your own making
If you are a participant in the “sharing economy” or “gig economy”, or if you are an independent contractor, consult your tax specialist. The sharing economy is a fast developing area of the economy and there are tax implications for the businesses that provide the services and the individuals who perform the services.