With the evolving nature of work and the rise of the gig economy, an increasing number of individuals are opting for flexible contract work rather than traditional full-time employment. This trend is particularly prominent in skilled white-collar jobs that can be performed remotely from anywhere in the world with an internet connection. Many people are embracing the freedom and flexibility of being digital nomads, combining work with travel.

The gig economy is rapidly expanding, with over 1.1 billion freelancers worldwide, including 59 million in the United States alone, accounting for 36% of the American workforce. This number is projected to reach 90 million in the US by 2028. However, this growth also brings certain risks, as data at the state level suggests that between 10% and 20% of employers misclassify at least one employee. High-profile lawsuits, such as the case of 400,000 drivers against Uber and Lyft, highlight the prevalence of this issue.


The Risks of Misclassification


Contractor misclassification occurs when individuals who should be classified as regular employees are instead categorized as contractors. By classifying workers as independent contractors, employers can avoid various obligations, such as employee taxes, social security payments, and benefits like health insurance and pensions. Independent contractors are not entitled to standard labor protections, including minimum wage requirements and overtime pay.


Misclassification has negative consequences for both employees and companies:


Fines: Governments are increasingly cracking down on misclassification to recover lost tax revenue. Fines may involve payment of all back taxes, often at the highest tax rate, along with additional penalties. In some cases, criminal charges may be filed if authorities suspect intentional misclassification to defraud the system.

Reimbursement of Unpaid Benefits: Employers may be required to compensate employees for unpaid benefits dating back to the time of misclassification. This can include interest on the owed amount.

Civil Lawsuits: Employees have the right to file lawsuits against companies to recover lost compensation, and courts may award additional damages as penalties.


Understanding Contractor Classification


To avoid misclassification and its consequences, employers need a clear understanding of the distinction between regular workers and contractors. This ensures compliance with the applicable regulations and protects both parties involved.


Government Concerns and Interests


Governments have a vested interest in properly regulating the employer-employee relationship and safeguarding the rights of workers. Their concerns revolve around three main areas:

Loss of Tax Revenue: Employers are required to pay payroll taxes for their employees, which are not applicable to contractors. Misclassification allows companies to avoid paying these taxes, resulting in a loss of tax revenue for the government. Furthermore, tax laws often differ between employees and contractors, leading to potential revenue loss from employees as well.

Protecting Worker Rights: Governments strive to ensure that employers fulfill their obligations to their workforce. Misclassification enables companies to circumvent labor laws pertaining to minimum wage, overtime pay, sick leave, and paid time off, which are rights granted to regular employees.

Ensuring Social Benefits: Contractors, as officially self-employed individuals, do not receive the social protections provided to employees, such as health insurance, pensions, and unemployment benefits. Instead, self-employed people can opt to contribute to their own pension, health insurance, etc. and choose the coverage.

By understanding the risks of misclassification and the government's concerns, employers can navigate the complexities of contractor classification, promote fair employment practices, and maintain compliance with labor regulations.

Determining Worker Status: Tests for Classification


When determining the status of a worker, whether they should be classified as an employee or an independent contractor, several tests are commonly used in the United States. It's important to note that there is no universal standard, and different tests may apply depending on the jurisdiction and specific circumstances. Here are some of the most commonly used tests:


"Right to Control" Test (IRS):


This test focuses on the degree of control exerted by the employer over the worker and consists of three categories:>

Behavioral Control: If the employer has the right to control how and where the work is performed, providing instructions and guidance, it suggests an employer-employee relationship. Independent contractors have more autonomy in determining how they complete the work.

Financial Control: The extent to which the employer exercises control over financial aspects, such as providing regular payments, reimbursing expenses, and supplying tools or equipment, can indicate an employee relationship. Contractors typically receive a lump sum payment, cover their own expenses, and provide their own equipment.

Nature of Relationship: If the worker performs services vital to the business on an ongoing basis and the relationship is expected to continue indefinitely, it implies an employment relationship. The provision of benefits also suggests an employee-employer relationship.


"ABC" Test:


This test is a simplified version used in some states, notably California. All three criteria must be met for a worker to be classified as a contractor. Outside of California, the test may be applied more flexibly. The criteria are as follows:

A. The worker is free from the employer's control and direction in the performance of the work.

B. The work is outside the usual course of the employer's business.

C. The worker is engaged in an independently established trade, occupation, or business of the same nature as the work performed.


Economic Reality Test (Fair Labor Standards Act):


This test, used to determine employee eligibility for minimum wage and other labor protections, focuses on the economic dependence of the worker. Factors considered include:

Integral Work: Is the work essential to the employer's business?

Worker's Investment: How does the worker's investment compare to the employer's investment?

Profit or Loss: Does the worker's management of the work influence their profit or loss?

Special Skills: Is specialized knowledge or skill required for the work?

Permanence: Is the work relationship expected to be temporary or ongoing?

Nature of Control: What is the level of control exerted by the employer over the worker?

It's crucial for employers to carefully evaluate these tests and consult legal experts to ensure proper worker classification, as misclassification can result in legal and financial consequences.

Correcting Employee Misclassification: Steps to Take


When an employer realizes that an employee has been misclassified as an independent contractor, it is crucial to address the issue promptly and appropriately. Simply severing ties with the worker is not a recommended course of action, as it can lead to legal penalties, increased scrutiny, and negative consequences for both the employer and the worker. Instead, employers in the United States have several options for correcting employee misclassification:

Voluntary Classification Settlement Program (VCSP):


Employers who have not been audited in the previous three years can opt for the VCSP. This program allows employers to voluntarily reclassify workers and settle their tax liabilities. Under the VCSP, the penalties are significantly reduced, amounting to just 10% of the employment tax liability for the previous tax year. This program is designed to encourage businesses to correct misclassification errors and ensure proper classification moving forward.


Classification Settlement Program (CSP):


If an employer is already under audit, the CSP is the recommended option. Employers can present evidence to demonstrate that the worker was not treated as an employee or that there was a reasonable basis for considering them a contractor. The program evaluates the validity of the employer's claim, and if accepted, the tax liabilities can be limited to a single year. Penalties may be waived upon request. It's important to note that multiple leniences will not be granted, highlighting the need for accurate worker classification going forward.

Regardless of the chosen program, employers should develop a strategy to accurately classify their workforce and ensure compliance with relevant laws and regulations. This may involve reporting and recharacterizing workers and implementing measures to prevent future misclassification.

Remember, misclassification can lead to fines, reputational damage, restrictions on hiring contract workers, and potential limitations on operating in certain regions. To avoid these risks, employers must take proactive steps to ensure full compliance and accurate worker classification.



No part of this publication constitutes legal or tax advice. The content may be updated from time to time and may be subject to interpretation.