DISCLAIMER: This post is a general overview of the potential legal implications of worker misclassification. It does not contain legal advice. If you require information or advice applied to your unique situation, please make an appointment to discuss it with an attorney.
Many articles online and in entrepreneur magazines tell business owners to hire independent contractors, interns, and volunteers before hiring employees. Start-up founders talk about the ways they saved money by hiring freelancers, sometimes following (bad) advice from their accountants or other trusted advisors.
They don’t hear what we do: the panicked owners who call after receiving a penalty notice from the New York State Workers Compensation Board. These penalties are not $100.00, or even $1,000.00. By the time the owners find us, the penalties are usually $16,000.00 or more.
Ignorance of the Law Is No Excuse
It’s absolutely imperative that you know the following before you hire the first non-owner to work in your business:
The Internal Revenue Service, Department of Labor, and WCB consider slightly different criteria to determine who is an independent contractor, versus an employee.
You can’t contract around these, and the penalties can be severe, especially if you have failed to secure workers compensation insurance to cover work-related injuries of workers the WCB determines are your employees.
Officers of a corporation can be held personally liable for employee wages and penalties for failure to provide workers compensation insurance.
You might have spent a lot of money setting up a separate entity to insulate your personal assets from liability for injuries to people or their property that arise from your business operations, but their are certain situations in which government agencies and the courts can “pierce the corporate veil”. They can still attach your personal bank accounts and other assets when that is the most equitable action to take.
Your business bank accounts can be frozen, if you have failed to provide workers compensation insurance and respond to a judgment regarding this failure.
The NYS WCB doesn’t like to be ignored, and as a future successful business owner, you don’t want to resolve any of the many conflicts that will arise in your operations.
If you are working on a government project, you could be served with a Stop Work Order and prohibited from continuing until you resolve issues with your workers compensation insurance.
This can, of course, stop your cash flow, put your employees out of work, and cause you to miss contractual deadlines.
It is often cheaper to pay for workers compensation insurance than to pay a penalty for non-compliance.
Penalties for failure to insure your employees under the workers compensation law accumulate at a rate of $2,000.00 for every 10-day period that you do not have the required coverage. For one employee, that’s $6,000.00 per month.
It’s not just penalties from the WCB that could arise.
In addition to those penalties, you could be responsible for the cost of a workers compensation claim filed against your business during a period in which you did not have coverage. Independent contractors, interns, freelancers, vendors, and volunteers have also been known to file Unemployment Insurance claims and cause audits that result in DOL penalties, which often lead to IRS and NYS tax penalties, if not also Wage and Hour claims.
I understand that you like the numbers you see when you calculate the purported savings of hiring an allegedly independent worker, but re-do your math considering the above variable costs. Do the cost-benefit analysis, and discuss your hiring in detail with an attorney and an accountant.