There is a nationwide crisis affecting the Construction
Industry. This crisis is the misclassification of
“Employees” as “Independent Contractors”. Many
Contractors use this type of misclassification to secure
construction projects by not including into their bids
the payroll taxes, unemployment taxes, other state taxes
and workers compensation premiums. This is an unfair
advantage to the contractors that play by the rules and
pay their required taxes, thus enabling cheating
contractors a unfair advantage in securing contracts.
Workers classified as Independent Contractors also lose
out by not having the protections that Employees have.
Workers that are misclassified as an independent
contractor do not have the protection of workers
compensation, unemployment benefits or Social Security
or Medicare benefits on their income. Workers that are
misclassified as independent contractors are responsible
for all taxes on the income earned from being classified
as independent contractors, but that depends on being
sent a Form 1099 Miscellaneous by the Employer or
Contractor. Many of these 1099’s never get reported or
submitted on tax returns. These misclassified workers
also do not have any worker protections under the
National Labor Relations Act or the Department of Labor.
Employers or workers should use the IRS Form SS-8
(Determination of Worker Status for Purposes of Federal
Employment Taxes and Income Tax Withholding) in
determining independent contractor/employee status .
Workers that submit this form to the IRS will require
the employer to be notified. The Employer will have to
fill out this form and submit this form for
determination of classification. If the worker is
determined by the IRS not be properly classified as an
employee, then the contractor may be required to pay all
the Employer taxes and penalties and the employees share
of taxes also.
There are many studies that show the revenue loss and
impact to the federal government and to the states.
Losses are in the hundreds of millions of dollars in
taxes and workers compensation premiums. Congress has
held hearings this year in relation to this issue. Many
states have enacted or considering the implementation of
laws that includes severe penalties and including
criminal charges for intentionally misclassifying
employees as independent contractors.
Please review the attached links on this page to learn
more about this issue. There will be more news to come.
Worker Misclassification News
USCIS Pilot Program to self-check employment status using E-Verify now available in all 50 states and Washington, DC
USCIS Issues Final Rule on Employment Eligibility Verification Form
[4/14/2011] - Final Rule Adopts Interim Rule Improving Integrity of Form I-9 Process & Links to Press Release, M-274 Employer Handbook and I-9 Form & Instructions
E-Verify Federal Contractor Rule becomes effective September 8, 2009.
[9/10/2009] - Press Release from US Customs and Immigration Services on implementation of E-Verify on Federal Contracts. more
E-Verify for Employees
[9/10/2009] - Employees - You Should Know Your Rights and Responsibilities Under E-Verify link
USCIS publishes final rule on E-Verify for federal contracts
[1/4/2009] - These new rules are effective on 1/15/09 for the use of E-Verify on certain federal contracts and subcontracts including construction. The press release is attached. more
Contractor or Employee? Ask the IRS
[7/25/2008] - The boss says you're an independent contractor. You think you're an employee. What do you do?
Present Law and Background Relating to Worker Classification
[11/16/2007] - Background Research for Congressional Hearing on Worker Classification on May 8, 2007. link
The Hidden Dangers of the Misclassification Crisis
[11/16/2007] - Testimony of John J. Flynn, President, International Union of Bricklayers & Allied Craftworkers
before the House of Representatives Committee on Education & Labor on March 27, 2007
Effects of the Misclassification of Workers as Independent Contractors
[11/16/2007] - Testimony of Rebecca Smith of the National Employment Law Project Hearing on May 8, 2007 before the US Congressional Committee on Ways and Means, Subcommittee on Income Security and Family Support and the Subcommittee on Select Revenue Measures.
Providing Fairness to Workers Who Have Been Misclassified as Independent Contractors
[11/16/2007] - Testimony of Catherine K. Ruckelshaus of the National Employment Law Project Hearing on March 27, 2007 before the US Congressional Committee on Education and Labor and Subcommittee on Workforce Protections. link
IRS Publication 1779
[11/16/2007] - Publication that provides information on Employee or Independent Contractor classification. link
IRS Publication 1976
[11/16/2007] - As an Employer, do you qualify for relief under the Internal Revenue Code 530 for misclassification of workers? link
IRS Publication 15a revised January 2007
[11/16/2007] - Employers Supplemental Tax Guide. link
IRS Form SS-8 and instructions
[11/16/2007] - Form used to determine a worker as an Employee or Independent Contractor. link