Wednesday, January 8, 2014

The Stakes are High for Misclassifying Employees in 2014

Misclassifying a worker as an independent contractor instead of an employee is creating potentially greater problems for business in 2014.   And it may well prove to be a banner year for the IRS, the U.S. Department of Labor and the  EEOC, which have all articulated their aggressive pursuit of misclassification claims against employers this year.

I have warned about the danger of misclassifying workers as independent contractors in the past, and the penalties imposed for doing so.  This year, with an increase in the minimum wage in NY to $8.00 per hour, the implementation of the Affordable Care Act  (ObamaCare) and certain amendments to the Americans with Disabilities Act (ADA), the stakes are even higher.

In addition, the U.S. Senate is introducing a bill in Congress (the Payroll Fraud and Prevention Act) to impose more requirements and penalties for misclassification.    Under the new law, among other things, an employer will be required to give written notice to each worker that he/she is considered a non-employee.  If wrongly classified, and the result is a wage underpayment, then the additional amounts already imposed under the Fair Labor Standards Act as a liquidated penalty for violation will be doubled.  The law will also allow the Department of Labor to target certain industries with "frequent incidence of misclassifying employees...."  For example, the construction industry and the restaurant industry.

What makes it difficult for businesses to comply with the classification rules is that each government agency has a different definition and a different test for making the determination.  Therefore, employers need to make sure they fit all of the definitions.

  

No comments:

Post a Comment