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CLASSIFICATION

Worker misclassification

Worker misclassification is treating someone as an independent contractor, or a non-exempt employee as exempt, when the applicable legal test does not support it.

Updated 2 min read2 primary sources

Misclassification usually starts with a shortcut: calling someone a 1099 contractor1099 contractor. A 1099 contractor is a self-employed person who performs services for your business and is generally paid without withholding and reported on Form 1099-NEC.Click to open the term because they invoiced instead of clocking in. Another is calling a role exempt because the job carries a manager title. Federal and state agencies each apply their own test to the real working relationship, not to a contract’s label. Misclassification often happens through misunderstanding a test or copying a prior provider’s setup rather than deliberate evasion. Agencies do not require intent to find a violation, and back pay and penalties can apply either way.

What can misclassification cost you?

A finding can reach back years, as far as each law’s limitations period allows. For federal back wages, that is generally two years, or three for a willful violation. A pattern across many workers in one role can become a wage and hour claim for the whole group. Tests and penalties vary by law, agency, and state, so get qualified legal or tax guidance on an unclear role.

WHAT YOU CAN OWEDETAIL
Back wages and unpaid overtimeFor hours previously treated as exempt or contractor pay
Withholding you should have madeIncome tax and the employee share of Social Security and Medicare, in some cases at reduced federal rates
Your own employment taxesYour share of Social Security, Medicare, and unemployment taxes
Penalties and interestAssessed by the IRS or state tax agencies; some states add their own misclassification penalties
SOURCES
  1. Misclassification of Employees as Independent Contractors Under the Fair Labor Standards Act
  2. 26 U.S.C. §3509, Determination of employer’s liability for certain employment taxes

General information, not legal or tax advice. Apply current federal and state rules with qualified guidance.

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