One of the biggest red flags to the IRS is misclassification of workers. Businesses that employ independent contractors may be more vulnerable than ever to private lawsuits and government scrutiny. Private actions involving alleged improper independent contractor classifications under the Fair Labor Standards Act (FLSA) and state wage and hour laws are on the rise. At the same time, the federal government has focused its attention on employers’ compliance with the rules governing worker classifications, and state governments have tightened their enforcement efforts.
Unlike employees, independent contractors are not covered by federal or state wage and hour laws, are ineligible for employee benefits such as health insurance and participation in company retirement plans, and cannot form or join labor unions. Additionally, employers are not required to pay Social Security, Medicare and unemployment taxes, or withhold and remit income taxes for independent contractors.
While companies are not prohibited from employing independent contractors, they can get in trouble for improperly classifying employees as independent contractors. Worker misclassification can result in substantial liability for unpaid wages, and taxes, penalties and fines, among other consequences.