Employee Misclassification Penalties

Employee misclassification penalties: Examples and protections

Misclassifying employees as independent contractors is a severe breach of law. Learn more about employee misclassification penalties in the US and how to avoid them.

Stefana Zaric
Written by Stefana Zaric
May 23, 2023
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Key takeaways

  1. Misclassification penalties depend on several factors, such as your business’s size and the amount of time a company avoided providing employment benefits and taxes.
  2. Penalties can include tax violation fines, federal law violation fines, and reputation damage.
  3. The penalties are also more severe if the Department of Labor (DOL) determines the misclassification is intentional.

In the US, up to 30% of employers have misclassified at least one worker. The most common form of employment misclassification is when companies wrongfully classify a full-time employee as an independent contractor when those workers should have employment status and receive the benefits of being an employee. 

While misclassification can often be an honest mistake, it can also be intentional and a way for companies to avoid providing workers with statutory employee benefits and paying payroll taxes. If workers suspect they have been misclassified, they can report it to the IRS. The IRS will then determine whether a company violated employment law and may face penalties, including class-action lawsuits, millions in fines for each misclassified employee, and even jail time.

What’s the difference between contractors and employees?

Independent contractor and employee relationships differ. Contractors typically set their work schedules and pay self-employment taxes. In contrast, employees usually work according to company-regulated schedules, receive statutory benefits, and have taxes withheld from their gross pay. However, it’s easy for the line to become blurred, especially since the definition of employee vs. independent contractor differs according to each government institution. 

The federal government’s U.S. Department of Labor, state governments, and the Internal Revenue Service (IRS) each use a unique test to determine a worker’s status

If you’re unsure which test to follow, use our misclassification assessment. We combine AI with award-winning research into employment court cases to help businesses classify workers with more than 90% accuracy, mitigating compliance risks.

Now we’ve covered the basics of independent contractor misclassification, let’s dive into the penalties of misclassification and how to protect your business. Checklist-2

3 employee misclassification penalties to avoid

Misclassification penalties depend on several factors, such as your business’s size and the amount of time you avoided providing employment benefits and taxes. The penalties are also more severe if the Department of Labor (DOL) determines that the misclassification is intentional.

1. Tax violation fines

When you hire a worker as an employee, their income is subject to FICA taxes, including Social Security and Medicare taxes, and income tax withholding from the contract signing date.

Suppose the IRS conducts an audit and discovers you’ve misclassified an employee as an independent contractor instead of honoring an employer-employee relationship. In this case, you may be subject to the following penalties:

  • Up to 3% of the misclassified employee’s wages
  • 100% of the FICA taxes you didn’t pay for the employee
  • Up to 40% of the FICA taxes that the company failed to withhold from the employee’s wages (also called back taxes)
  • $50 per W-2 tax form you didn’t file for the misclassified employee

2. Federal law violation fines

 On top of avoiding mandatory taxes, misclassification violates an employee’s federal protection. These protections ensure employment benefits like overtime pay and compliance with the minimum wage required by state law (under the Fair Labor Standards Act (FLSA) rules).
The DOL takes federal labor law violations very seriously. This department hires auditors to identify and penalize independent contractor misclassification. At a minimum, consequences include paying back wages, but you could also face criminal penalties, including:

  • Payment penalties of up $1,000 per misclassified employee
  • Jail time of up to a year
  • Class-action lawsuits seeking punitive damages (plus associated attorney fees)
  • Benefits insurance repayment (including paid leave, pension plan, workers’ compensation, severance pay, unemployment insurance, and more)
  • Additional wage claim audits looking for further punishable irregularities in the past three years
  • Individual misclassification claims, which can include punitive and special damages, as well as all benefits, wages, and expenses proven due to employees

Note that some states may have specific laws regarding misclassification of employees. For instance, California courts charge a civil penalty if the misclassification was willful. These fines range from $10,000 to $25,000 per misclassified employee. If you’ve made an honest mistake, the penalty ranges from $5,000 to $15,000 per employee.

Read more about independent contractor laws in California.

3. Harmed reputation

A high-profile misclassification case might damage your company’s reputation, cause existing employees to leave, and dissuade potential contractors and employees from working for you in case they're deprived of health insurance or overtime pay. 

Properly classified employees may also protest in support of misclassified co-workers. And for especially high-profile instances, employees may want to avoid being associated with companies involved in misclassification to protect their chances of future employment.

Why do governments care about misclassification?

When companies fail to pay payroll taxes, two things happen: First, true employees lose their protections and entitlements, which the government tries to prevent. Second, the burden of covering the taxes falls to the contractor and leads to lost tax revenue for the government.

Many misclassified independent contractors aren’t aware of their tax responsibilities and don’t pay taxes timely or accurately. As the gig economy grows, unpaid employment taxes are becoming an increasingly severe issue for the government.

There are estimated millions of misclassified workers in the US, which translates to millions of dollars of unpaid employment taxes. Exact numbers are difficult to find, but in 2008, New York alone lost over $4.8 million in unpaid unemployment taxes. It’s not just about the government: unpaid taxes damage Medicare and social security funds, affecting every taxpayer in the country and the economy.

On the other hand, workers suffer from several consequences, too. Workers with independent contractor status are not entitled to employee benefits such as healthcare, social security, overtime pay, minimum wage, worker’s compensation insurance, and more. 

Misclassification occurs when workers fulfill all full-time employment obligations (like attending work at specified times and completing mandatory training) without receiving those statutory benefits.

global-generic-light-bulb-earthConverting a contractor to an employee can protect the employer from penalties, provide a better employee experience, and simplify collaboration. Find out how in this article.

Real-life examples of misclassification penalties

The DOL regularly punishes businesses of all sizes for employee misclassification. Here are a few recent examples of companies that misclassified their employees as contractors and faced fines and legal consequences. Spoiler alert: it’s not just Uber.

In 2016, two Massachusetts construction companies intentionally misclassified over 400 employees. The consequence was $2,360,000 in fines (overtime and damages).

In 2021, Holland Services misclassified 700 employees. The DOL’s investigation of this case led to almost $43,277,000 the company owed in back wages and damages.

Another case from 2021: Servant’s Quest violated the FLSA by misclassifying 50 workers. Due to unpaid overtime hours, they had to pay $358,675 in back wages.

A construction company’s owner was found guilty of misclassifying 30 construction workers who should have been employees. Since the authorities determined this act was intentional with the objective of not paying the taxes, the owner of G&R Drywall and Framing was sentenced to almost two years of prison, with 12-month-long consecutive probation.

Can you get misclassification protection?

Correctly classifying your workforce is the best way to protect yourself from legal penalties and fines. Learning the difference between independent contractors and employees is a good start. The next step is to tailor your contracts to local laws and get legal experts to review them.

Discover how Project44 gets added peace of mind from misclassification and saves around $500,000 a year with Deel Shield

Deel Shield gave us peace of mind when hiring people as contractors in any part of the world. I don’t have to worry anymore about compliance. It feels much safer.

Chloe Riesenberg, People Specialist, Project44

Avoid misclassification with Deel 

With Deel Shield, you can let us classify and hire contractors in 150 countries on your behalf to eliminate your misclassification risk and liability.

Unlike other providers, Deel specializes in localized compliance. We use a worker classification questionnaire and the help of local experts to review, correctly classify, and engage a contractor based on location, job description, and work setup.

On top of that, you can automate onboarding, invoicing, and payments and provide benefits to contractors anywhere in the world. 

Our teams really like Deel. It has made it a lot easier on both sides. Now we can have reports of exactly what we’ve been paying our contractors on Deel Shield, and they get to see the history of their payments in one place instead of having to dig through email. It also simplifies payments for the Accounts Payable teams, as they can make all the payments all at once to both Employees hired through EOR and contractors hired with Shield.

Chloe Riesenberg , People Specialist, Project44

If you already use Deel, learn more about upgrading to Deel Shield. If you’re not a Deel user (yet), book 30 minutes with a product expert to learn more.

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