Independent Contractor Issues after SB 459 Presented by Daniel B. Pasternak. 37 Offices in 18 Countries

Transcription

1 Independent Contractor Issues after SB 459 Presented by Daniel B. Pasternak 37 Offices in 18 Countries 10/18/2012

2 What are Independent Contractors? No set definition but typically a worker who contracts with an employer to provide specialized services on a project or on an as-needed basis Usually in the business of selling such services to various customers Works independently and often supplies own tools and place of work Consultants, freelancers, contingent workers, self-employed, free agents, or micropreneurs 2 2

3 Independent Contractors on the Rise Employers like IC relationships because they are about 30% cheaper overall: No benefits No unemployment insurance No workers comp. coverage No min. wage or OT requirements No withholdings Limited application of anti-discrimination laws 3 3

4 Independent Contractors on the Rise Some individuals prefer to be independent contractors: Flexibility as to when they work and how much Greater autonomy and less supervision Easier to get work because businesses have less at stake than when hiring a regular employee Perceived tax benefits 4 4

5 What s At Stake for Government Social Security Medicare Unemployment Insurance Workers Compensation On average misclassified workers do not report 30% of their income. 5

6 Government Agencies Looking Closely As many as 1 in 5 US workers is an independent contractor DOL estimates up to 1/3 of employers have at least one misclassified IC Federal study projected employers misclassified 3.4 million regular workers as independent contractors. Harvard study concluded 4.5% of Massachusetts employees misclassified as contractors. Cornell study concluded 10% of New York s private-sector workers are misclassified. $2.72 billion a year in unpaid Social Security, unemployment insurance and income taxes Truck drivers, High tech engineers and construction workers are among the most often misclassified 6 6

7 Government Crackdown Enforcement priority for Department of Labor and IRS at federal level. State focus from EDD and DLSE. Ø Inquiries about independent contractors are now standard when DLSE investigates any wage and hour complaints. ( While we re here, we might as well ask about... Ø EDD audits triggered by individuals classified as independent contractors filing unemployment insurance claims. Ø Audits triggered by misclassified workers filing workers comp. claims. Stand alone audits by state and federal agencies targeting priority industries especially transportation and technology. You are only a disgruntled individual away from an auditor on your doorstep. 7 7

8 Independent Contractor Tests 8 The IRS test Looks at evidence of control and independence in the relationship Three categories of evidence: Ø Behavioral Control Who says when, where and how to work? Who provides the tools and supplies? Can the individual hire assistants? Does the company provide special training or instruction? Ø Financial Control Unreimbursed business expenses? Does the contractor bear fixed overhead costs or has made investment? Paid regularly or flat fees per job? Ability to realize profit or loss? Ø The Relationship of the Parties Written contracts? Benefits? How permanent is the relationship? Are the services a key part of the regular business? 8

9 Independent Contractor Tests Economic realities test governs for most California purposes: (1) the extent to which the worker's services are an integral part of the employer's business; (2) the permanency of the relationship; (3) the amount of the worker's investment in facilities and equipment; (4) the nature and degree of control by the principal; (5) the worker's opportunities for profit and loss; and (6) the level of skill required in performing the job and the amount of initiative, judgment, or foresight in open market competition with others required for the success of the claimed independent enterprise. 9 9

10 Exposure for Getting it Wrong Back wages, benefits and OT (if non-exempt) for up to three years Reimbursement for business expenses Fines & penalties for state Labor Code violations Ø SB 459 penalties between $5,000 and $15,000 per willful violation Ø If there is a pattern and practice, penalties climb to $10,000 to $25,000 per violation. Ø Required to prominently post notice of the violation for one year on your website Ø Successor companies are liable for past acts if any of the old owners or officers are an owner or officer of the successor and the successor engages in similar conduct Tax liability Liability for workplace injuries Liability for workplace discrimination Third-party liability 10 10

11 What to Do? Review your IC agreements Police IC agreements carefully when doing due diligence in acquisitions and joint ventures Train your managers, not just HR Assess your risk Consult counsel as appropriate Take action sooner than later 11 11

12 Worldwide Locations North America Latin America Europe & Middle East Asia Pacific Cincinnati Cleveland Northern Virginia Palo Alto Bogotá+ Buenos Aires+ Beirut+ Berlin Leeds London Beijing Hong Kong Columbus Phoenix Caracas+ Birmingham Madrid Perth Houston San Francisco La Paz+ Bratislava Manchester Seoul Los Angeles Tampa Lima+ Brussels Moscow Shanghai Miami Washington DC Panamá+ Bucharest+ Paris Singapore New York West Palm Beach Rio de Janeiro Budapest Prague Tokyo Santiago+ Santo Domingo Frankfurt Kyiv Riyadh Warsaw 12 + Independent Network Firm