Both the IRS and the Commonwealth of Massachusetts have had a heightened interest in misclassified independent contractors in recent years. The Federal and State governments have recently announced additional funds being allocated to hire more auditors because they anticipate a good return on investment. More auditors = more tax dollars found.

In general, business people tend to be more familiar with the IRS rules regarding independent contractors than with the state rules. The IRS follows a “common law test” for assessing the classification of contract workers, which is meant to reveal how much direction and control the business retains over the worker. The IRS developed a list of twenty factors to be used as an aid to apply the common law test. In addition to the federal test, Massachusetts employers have the state law to consider, which I am focusing this article on because:

Massachusetts law is more stringent than federal law
The Attorney General issued an advisory which stated, “The Massachusetts Independent Contractor Law (MICL) excludes far more workers from independent contractor status than are disqualified under the IRS common law test.”
As employers we should be paying closer attention to Independent Contractor law at the state level. Here are the requirements of Massachusetts law and their effect on businesses.
Massachusetts Law requires a three part test
The MICL creates a presumption that an individual performing any service is an employee. To overcome this presumption, the party receiving services must establish:

1.  that the worker is free from its control and direction in performing the service, both under a contract and in fact; and

2.  that the service provided by the worker is outside the employer?s usual course of business; and

3.  that the worker is customarily engaged in an independent trade, occupation, profession or business of the same type.

The law requires that all three parts of the test (sometimes called prongs) must exist in order for an individual to be classified as anything other than an employee. The burden of proof is on the employer, and the inability of an employer to prove any one of the prongs is sufficient to conclude that the individual in question is an employee.

Some examples of how the law will apply
Based on my interactions with businesspeople, prong two seems to be the most problematic and least understood, so I will illustrate the application of the law in this regard:

Example #1: An accounting firm brings in a painter to repaint their office and classifies as an independent contractor. Assuming this person meets the tests for prongs one and three, the classification is allowed because the work being done is outside the firm’s usual course of business.

Example #2: An accounting firm brings in an accountant to assist them during their busy season and classifies as an independent contractor. This would be a violation of prong two because the service provided is not outside the employer’s usual course of business.

It is significant to note that the MICL does not take into account where the work is performed as part of this assessment. I took the time to point this out because it is a common misconception that if an independent contractor works outside of the employer’s place of business (i.e. from home), that fact satisfies the requirements to be classified as an independent contractor when this is not the case; where the person works is not relevant.

Consequences of misclassification

When employers don’t understand the application of the law and misclassify someone as an independent contractor, there can be costly repercussions. Employers can potentially be responsible for FICA and Medicare taxes and can even be responsible for the federal and state taxes that “should have”been withheld from the employee. In addition, they can be responsible for state unemployment taxes, worker’ compensation, and overtime if applicable. Penalties can accrue and in certain cases (i.e. overtime) treble damages can be assessed. Even if unintentional, what is often intended as a cost savings strategy can turn into a costly oversight.

Summary

While the use of independent contractors is extremely important to many companies, it is an approach fraught with inherent risks. The increased government attention to independent contractors and the large penalties involved take these risks to a dangerous level for Massachusetts businesses. Businesses need to examine their independent contractor relationships to ensure they comply with the rules or alternatively consider taking the appropriate steps to restructure their relationships.
Aaron Green is founder and president of Boston-based Professional Staffing Group and PSG Global Solutions. He is also the vice chairman of the American Staffing Association. He can be reached at Aaron.Green@psgstaffing.com or (617) 250-1000.