Employee Misclassification Penalties

MBO Partners provides an overview of the penalties that may result from misclassification and how to protect your company. The blog post states:

Here are five consequences of employee misclassification and what your company can do to remain compliant.
Legal Compliance
There are a variety of tests that exist to determine whether or not a worker should be classified as an employee or an independent contractor. The federal government, state government, and government agencies all apply different tests to determine classification, and these tests lack uniformity. This complicates the hiring and vetting process as independents can be categorized as employees under one law, but as contractors under another.
Unfortunately, this can make legal compliance difficult. If employers misclassify employees, they may be violating wage, tax, and employment eligibility laws.
Organizations can be held liable for failing to pay overtime and minimum wage under the Federal Fair Labor Standards Act (FLSA) as well as under state wage laws. Wage claims may go back as far as three years if a willful violation is found—when an employer knowingly violates the law.
When an employee is misclassified, federal and local government lose out on tax and payroll revenue. Employers may be responsible for paying state and federal payroll taxes as well as Social Security and Medicare taxes for all employees found to be classified incorrectly. Penalties can also be imposed for failing to timely deposit payroll taxes.
Lastly, organizations must keep I-9s for each of their employees on record to prove their employment eligibility. If an independent contractor should’ve been classified as an employee, there are fines associated with not having an I-9 form on record for that worker.
Penalties, Fines, and Back Payments
Fines from the U.S. Department of Labor (DOL), IRS, and state agencies can total millions of dollars. Organizations can be held responsible for paying back-taxes and interest on employee’s wages as well as FICA taxes that weren’t withheld originally. Failure to make these payments can result in additional fines.
If the IRS believes you’ve intentionally misclassified workers, there is also the possibility of criminal and civil penalties and sanctions. Additional penalties and fines can be applied depending on the severity of the misclassification.
Class Action Lawsuit
The media today is filled with ongoing class action lawsuits involving large, well-known organizations. These lawsuits can result in huge costs for your company—not only legal costs, but also punitive damages, compensation that goes above and beyond individual or government fines and payments.
When a company is involved in a lawsuit, representatives from legal, HR, marketing, and finance departments will need to assist in finding proper documents, defend claims, and comply with investigations. During this time, these key people will not be able to dedicate as much time to their primary work.
Loss of existing talent is also a potential consequence. Independent professionals may decide to end their relationship with your company, or choose to not reengage with you when their project ends.
Benefits Owed for Re-Classified Employees
If a worker believes they’ve been misclassified, they can file a complaint with their state Department of Labor or with the DOL. If these claims are validated, workers are eligible to claim employee benefits including 401(k) severance, health and welfare coverage, stock purchase plans, and even overtime, PTO, and rest brake time. This can result in additional fines and penalties as well as increased scrutiny from tax and labor authorities.
Reputation Damage
Not only can misclassification hurt your workers and your bottom line, but it can also damage your organization’s reputation. An audit or lawsuit can put your company in the public eye, which can lead to negative publicity that can damage recruitment efforts and the overall reputation of your brand.