The Employer/ EmployeeRelationship

Kimberley Childress, CPPFebruary 20, 2010

What are the employer responsibilities?

Benefits of an IndependentContractor Classification

• Reporting requirements are less– With a valid TIN – Form 1099 Misc (if contractor

was paid over $600 for services)– No income, social security, Medicare, federal or

state unemployment taxes– No administration of or contribution to employee

benefits

Common Law Test

• Classify by applying the ‘common law test’– Right to control is KEY• Control what and how = Employee• Control Results to be accomplished and NOT the

Details of how = Independent Contractor

Common Law Test

• Key Control Factors– Behavioral Control – Instructions and training– Financial Control – Business expenses, investment,

public availability, pay basis, profit/loss potential– Relationship of Parties – Written agreement,

benefits plan, open-ended relationship, key aspect of services to business activity

Common Law Test

• Factors not important in the determination:– Part time vs full time work– Location of work– Hours of work– Length of employment

Reasonable Basis Test

• Section 530 of the Revenue Act of 1978– Court decision, IRS ruling/ technical advice/

private letter ruling– Past IRS audit of employer– Longstanding, recognized practice of employers

industry– Consistent treatment since 1978– Clarified by Small Business job Protection Act of

1996

Reasonable Basis Test

• Failure to file Form 1099-Misc in one year no bar to Section 530 relief in later years

• Notice of Section 530 must be provided by IRS• IRS auditors must be ‘liberal’ in applying

Section 530

Reasonable Basis Test

• Technical Services Specialists– Tax Reform Act of 1986 – excludes ‘3 party’

arrangement technical service specialists• Worker/ technical service firm/ firm’s client

– Status determined by common law test– Includes: engineers, drafter, designers, computer

programmers, and systems analysts

Reasonable Basis Test

• Use Form SS-8 for a definitive ruling from IRS on newly hired employee status

• Employer should treat the workers in question as employees, with all appropriate wages and taxes reported and/or withheld.

• If IRS rules the worker is an independent contractor the employer is not entitled to a refund of any employment taxes paid

Reasonable Basis Test

• Specific Industry Guidelines for:– Entertainment Industry– Limousine drivers– Moving van operators– Garment and furniture manufacturing– Harwood timber industry

• Disputes can be heard by Tax Court

Statutory Employees

• Not employee under common law test– Payments are not subject to federal income tax– Payments are subject to social security, Medicare,

and federal unemployment taxes– Employer’s share of Social Security and Medicare

taxes, and FUTA if applicable

Statutory Employees

• Four categories of statutory employees:– Agent – drivers or commission drivers– Full – time life insurance salespersons– Homeworkers– Traveling or city salespersons

Statutory Employees

• General requirements:– Must agree with the employer that all services to

be performed personally by the worker– Must not make a substantial investment in

business equipment or facilities– Work must be part of a continuing relationship

with employer

Statutory Non-Employees

• Statutory non-employees are employees under the common law test but are treated as independent contractors

• Earnings are not subject to Federal income, social security, Medicare, or unemployment taxes

Statutory Non-Employees

• Two categories of statutory non-employees:– Qualified real estate agents– Direct sellers

• General requirements:– Compensation directly related to sales/work– Written contract that the individual will not be

treated as an employee for tax purposes

Temporary Help Agency Employees

• Hired, screened and trained by the temporary help agency

• Employees of the temp agency• Agency is responsible for complying with any

payroll, benefits and HR requirements

Leased Employees (PEO’s – Professional Employer Organizations)

• Enter into a leasing arrangement• Leasing company hires, trains, and qualifies workers

for a client• Workers are employee’s of the leasing company• Leasing company is responsible for all withholding &

employment taxes, administration and funding of benefits

Watch Out

Make sure that the temp or leasing agencies are financially secure and reputable before entering into a contract. Since the agencies financial failure could lead to the client company to become liable for any withholding or employment taxes that remain unpaid

Federal Wage – Hour law

• FLSA – U.S. DOL Wage and Hour Division• Economically dependent on employer• Factors considered:– Control, profit, investment in tools/material,

special skills, permanency of relationship, if the work is an integral part of employers business

State Income Tax Withholding

States that require withholding of state income tax follow common law test used by the IRS in determining whether an employer-employee relationship exists.

Non-Resident Employees

• Employees live in one state and work in another

• Some states have ‘reciprocity agreements’• Check income tax withholding requirements

fo the state you do business

State Unemployment Insurance

• Laws more inclusive than federal laws• ‘ABC Test’ – Independent contractor if:• Absence of control• Business is unusual and or away• Customarily independent contractor

• 34 states use A and/or B and/or C (remaining states use Common Law Test)

IRS Enforcement and Penalties

• Form 1099 Matching– 1099 from one company only– 1099 & Form W-2 form the same company

• Penalties– Federal income tax = 1.5% if wages paid (3.0% if

no 1099 filed)– Social security and Medicare tax = 20.0 % of

employees portion plus employers share (40.0% if no 1099 filed)

IRS Enforcement and Penalties

• Intentional Misclassification Penalty– Employer liable for full amount for Federal Income

Tax and 100% of the employee’s and employer’s share of social security and Medicare

– Reclassification as an employee can mean retroactive application of benefits such as 401(k) and 423 stock purchase plans (Microsoft case)

Proof of Right to Work in U.S.• Immigration & Reform Control Act of 1986– Illegal to hire an unauthorized worker– Employer must verify identity and eligibility

• Form I-9– Employees complete Section 1 on first day of work– Review documents and complete employers Section 2

within 3 business days of the date of hire– Keep for 3 years from date of hire or 1 year from date of

termination– Can not require specific documents– Workers must present one from List A or one each from

List B and List C

Proof of Right to Work in U.S

Document Changes

Expired documents with no longer be acceptable to prove identity or work

authorization

Proof of Right to Work in U.S.

• List A – Proof if Identity & Work Eligibility– US Passport or US Passport Card– Permanent Resident Card or Alien Registration

Receipt Card (Form I-551)– Foreign passport with temporary I-551 stamp or

temporary I-551 printed notation on a machine readable immigrant visa

– Employment Authorization Document that contains photo USCIS Form I-766

– Foreign passport with an Arrival-Departure Record, Form I-94 or I-94A

Proof of Right to Work in U.S.

• List B – Proof of Identity– State issued drivers license or state ID with photo– ID card issued by government agency with photo– School ID card with photo– Voter’s registration card– US Military or military dependent ID card or draft

record– US Coast Guard Merchant Mariner card– Native American tribal documentation

Proof of Right to Work in U.S.

• List B – Proof of Identity– Canadian Driver’s License– For persons under age 18• School record or report card• Clinic, doctor, or hospital record• Day care or nursery school record

Proof of Right to Work in U.S.

• List C – Proof of Work Authorization• US Social Security Card • Certificate of birth abroad, Form FS-545 or DS-1350• Original or certified copy of birth with official seal

issued by state or local government• Native American tribal document• US Citizen ID card I-197• Employment authorization document issued by DHS

(other that I-766)

Proof of Right to Work in U.S.

• Penalties for knowingly hiring unauthorized aliens– 1st offense - $375 to $3,200 per employee– 2nd offense - $3,200 to $6,500 per employee– 3rd offense - $4,300 to $16,000 per employee

Proof of Right to Work in U.S.

• Penalties for knowingly hiring unauthorized aliens

• Failure to comply with verification requirements - $110 to $1,100 per person

• Pattern and practice of violating hiring and verification process - $3,000 and/or 6 months in jail

Proof of Right to Work in U.S.

What constitutes ‘knowingly’ hiring unauthorized aliens?

Employment Verification Pilot Programs

• Illegal Immigration Reform and Immigrant Responsibility Act of 1996

• 3 verification pilot programs– Basic pilot – Became E-Verify– Citizen Attestation Pilot (not renewed after 2003)– Machine Readable Document Pilot (not renewed

after 2003)

What is E-Verify Program?

E-Verify Program - General Rules

• Employers can request– All hiring in each state or– Limited to hiring in one or more states or– One or more places or hiring within a state

E-Verify – Program Rules

• A Memorandum of Understanding (MOU) with the SAVE Program and SSA

• New Hires only• Form I-9 completed– Form I-9 requirements remain the same, except

all ‘List B’ identity documents must contain a photo

– Verify within 3 days of hire– All employees

E-Verify – Program Rules

• No employer cost• Equipment required– PC with modem and touch tone line with a single

originating phone number

E-Verify Program Rules

Federal contractors and subcontractors must use E-Verify system to verify that new hires and current employees working on certain

federal contracts are eligible to work in the US

IMAGE Program

• Employer Benefits– Provide training & education on proper hiring

procedures, fraudulent documentation, and anti-discrimination laws

– Share data on illegal schemes– Review hiring and employment practices

IMAGE Program

• Employer duties– Company must agree to I-9 audit by ICE – Use Basic Pilot employment verification program

for all new hires– Establish internal training

New Hire Reporting

• Personal Responsibility and Work Opportunity Act of 1996

• Facilitate collection of child support• Uncover fraud and abuse– Unemployment Compensation programs– Worker’s Compensation Programs– Public Assistance (Welfare) benefit programs

New Hire Reporting

• Reporting Requirements

– Employee name, address, and social security number

– Employer name, address, and FEIN

New Hire Reporting

• Employers operating in only 1 state– Report new hire information to that state• Paper, magnetically or electronically

• Multistate Employers– Can report to any state• Magnetically or electronically

New Hire Reporting

• Multistate – reporting in one state– Notify Secretary of Health and Human Services

• HHS form, letter, fax or e-mail

• Information required:– Employer name, address, phone and FEIN– Designated state and report begin date– List of all states with employees– Employer contact person– Any subsidiary name, zip code, and FEIN included in

the reporting

New Hire Reporting

• General Reporting Requirements:• Report within 20 calendar days of hire• Magnetically or electronically– 2 transmissions per month (at least 12-16 days

apart)

• States can establish the time frames but they can not be longer than the federal rules

New Hire Reporting

• General Reporting Requirements• Multistate employers provide only

information required by the state they report to

• Date of hire• Employees who work 1 day must be reported• Independent contractors

New Hire Reporting

• General Reporting Requirements– Rehired, Leave of Absence

• Temporary help firms• Unions and hiring halls– Employees– Individual referred for employment

New Hire Reporting

• Reporting format and method• Form W-4 or equivalent• 1st class mail, fax, magnetically, or

electronically• CAUTION: If you use a Form W-4 for reporting,

use a copy of the original when adding the employers name, employee’s date of birth, etc. Do not alter the original Form W-4!

New Hire Reporting

• Penalties• Civil penalty of up to $25• $500 maximum if the result of a conspiracy

between the employer and employee

New Hire Reporting

• Information Processing– The states have 5 business days to enter

information to the State Directory• 2 business days from the date of entry to transmit a

child support withholding order

• Within 3 days from the date of entry, the state must furnish the information to the National Directory