Misclassification of workers brings stiff penalties in Virginia

From The Virginian Pilot, Joe Moriarty discusses some of the penalties in Virginia for misclassifying workers as independent contractors. Joe writes:

In situations where VOSH [Virginia Occupational Safety and Health program] has reasonable cause to believe that worker misclassification has occurred, the following actions will normally be taken:

  • If citations and penalties are proposed for the employer, penalty reductions for size and good faith will not be afforded to the employer.
  • In construction multi-employer worksite situations, each contractor (e.g., general contractors, prime subcontractors and lower tier subcontractors) will be asked to provide proof of their DPOR contractor’s license and for proof of the DPOR license for any of its subcontractors.
  • When it is determined that a construction employer has contracted with an unlicensed subcontractor, VOSH will make a written referral to DPOR for the contractor and its unlicensed subcontractor. (DPOR sanctions for contracting with unlicensed subcontractors may include fines, probationary terms, suspension or license revocation.)
  • In cases where the contract value for the specific subcontractor’s job is less than $1,000, VOSH will make a written referral to the VEC and/or the VWCC for potential audits of the employer’s employment practices. There may be instances where referrals will be made for contract values over $1,000 as well.

To avoid the potential penalties listed above, Virginia employers should assess whether its independent contractor and 1099 arrangements are properly classified and ensure that subcontractors possess the required contractor’s license issued by DPOR. As the applicable laws are complicated, and at times conflicting, employers should seek legal advice to ensure compliance.

Joe Moriarty is a partner in the federal and state occupational safety and health legal defense practice group at Willcox Savage PC in Norfolk. Reach him at jmoriarty@wilsav.com or visit willcoxsavage.com.

Source: Misclassification of workers brings stiff penalties | Expert column

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