What is the business relationship between you and the people who do work for you? Are they employees or independent contractors? The implications of these scenarios can have big effects on your business operations, especially for small businesses. The two are very different working relationships, and incorrectly classifying your workers will likely lead to repercussions with the IRS.
Employees provide services for an employer. They are under an implied or express contract of hire, and this contract allows the employer to determine the details of work performance. The IRS determines whether an individual is an employee or contractor based on degrees of control and independence in the working relationship. Under common-law rules, “anyone who performs services for you is your employee if you can control what will be done and how it will be done.” Employees will fill out a Form W2, while an independent contractor completes a 1099-MISC. The default classification for workers is W2 employees.
Employers have complete control and direction over an employee’s work and wages or salary during their work time. This means, they determine training, job requirements and responsibilities for the position. Full-time employees perform 30 or more hours of work for you per week. Less than 30 would qualify the worker as a part-time employee. Generally, employees have an ongoing commitment to you and your business. Employees enjoy job security, and the lack of job security for freelancers usually leads them to charge more per job. Tasks can be permanently delegated to your employees, while freelancers have no obligation to be on call for you or your business.
There are laws and regulations you must uphold, being in charge of employees. These are required by both the state and federal government, and include regulations related to pay, overtime and other work rules. In the tax realm, if you have employees, your business is required to comply with payroll tax requirements. This includes paying half of Social Security and Medicare taxes, and collecting the other half from the employee. You are also responsible for paying unemployment insurance and worker’s compensation insurance. The added overhead of these expenses is often what drives employers to misleadingly employ independent contractors. While you are not required to offer benefits like health care and vacation time, full time employees will often expect these fringe benefits.
The IRS qualifies independent contractors in the following way: “The general rule is that an individual is an independent contractor if the payer has the right to control or direct only the result of the work and not what will be done and how it will be done.” Here, the other party is self-employed, so the two parties are acting in a working relationship between two businesses, where one is providing a service to the other. When you hire an independent contractor, you can assign duties or projects, with an imposed deadline, but you cannot dictate how the job is completed. Thus, most independent contractors are hired with a contract that provides a defined period of employment, with the option to renew as many times as needed.
Independent contractors can complete work and projects for multiple employers, but often provide their own tools for completing the job. They are ideal for smaller, as-needed projects for your business. As a whole, small business owners prefer to hire as-needed freelance work. Pay is usually hourly or outlined in a contract, and you are not held to a salary. Besides being responsible for their own taxes, contractors are also responsible for their own permits and professional licenses, if needed for the task.
Independent contractors are entitled to set their own hours of work. There are very little tax responsibilities you will be held to for independent contractors you hire. You will report any contractor’s income on a form 1099-MISC, but, as the hiring agent, you do not have to withhold any taxes from your payments to a contractor. However, contractors have no responsibility to you or your company, in terms of loyalty. They are free to take on work on a first term, first serve basis. In addition, they work under their own brand, not your company’s.
If the work required needs to be completed under your supervision or you have control over the tools and equipment used to complete the work, then you are hiring an employee. Also, if the work is long-term or essential to your business, you are employing an employee, not an independent contractor. If the work is not essential to your business operations, is short-term and can be done without supervision, then hiring an independent contractor is applicable.
If the IRS believes you are misclassifying your workers, it may be cause for an audit. If you incorrectly classify an employee as an independent contractor, you could be liable for unpaid employment taxes. Workers who feel they have been misclassified can file Form 8819, Uncollected Social Security and Medicare Tax on Wages for the entire duration of their compensation period. If you are still having trouble deciding which category your workers fall into, file Form SS-8 with the IRS: Determination of Worker Status for Purposes of Federal Employment Taxes and Income Tax Withholding.