1099 consultant OR..............Misclassification: DOL and IRS Declare War

Misclassification: DOL and IRS Declare War


Wednesday, April 11, 2012 3:00 AM

by Steve Bruce

Misclassification—calling individuals "independent contractors” or “volunteers” who properly should be employees—is a burgeoning legal battleground for HR managers. A recent 30-million-dollar suit on behalf of newspaper carriers is a good example of the stakes involved, says attorney Christine V. Walters.

Walters, who is a consultant with the FiveL Company in Westminster, MD, offered her tips at SHRM’s Employment Law and Legislative Conference, held recently in Washington, DC.

As one indicator of what’s in store for employers, says Walters, note that the Congressional budget includes $14 million to combat misclassification, including $10 million for grants to states to identify misclassification and recover unpaid taxes and $4 million for personnel at the DOL Wage and Hour Division to investigate misclassification.

Another factor that means more scrutiny is memoranda of understanding (MOUs) between DOL, IRS, and some states that the various agencies will share information, says Walters.

Why Is Misclassification Such an Issue?

A lot of entities—from DOL and IRS to state agencies for taxes, workers’ compensation, and unemployment—believe they are losing money to misclassification, and they want to get it back. For example:

•Federal and state income tax withholding

•Social Security taxes

•Medicare taxes

•Unemployment

•Workers’ comp

There are also concerns around:

•Application of minimum wage and OT

•Discrimination

•Health care benefits

•Paid and unpaid leave benefits

Walters focused first on two areas where she sees many mistakes in classification, unpaid summer interns and “volunteers.”


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So What Are the Rules for Independent Contractors?

It depends! says Walters. There are at least three different guides: EEOC, IRS, and the Supreme Court.



According to the EEOC, the indicators that a worker is an employee—not an independent contractor—are:


•The work does not require a high level of skill or expertise.

•The agency or employer, not the worker, furnishes the tools, materials, and equipment.

•The work is performed on the premises of the agency or employer.

•The worker and the agency or employer have a continuing relationship.

•The agency or employer has the right to assign additional projects to the worker.

•The agency or employer sets the hours of work and the length of the job.

•The worker is paid by the hour, week, or month instead of a set fee for performing a particular job.

•The worker has no role in hiring and paying assistants.

•The work is part of the regular business of the employer.

•The worker does not have a distinct occupation or business of his or her own.

•The agency or employer provides the worker with benefits such as insurance, leave, or workers' compensation.

•The agency or employer withholds federal, state, or social security taxes on behalf of the worker or should do so.

•The agency or employer can discharge the worker.

•The worker and either the agency or employer believe they are creating an employer/employee relationship.

In tomorrow’s Advisor, IRS and Supreme Court guidelines, plus an introduction to the “50x50,” a unique guide to fifty employment laws in fifty states.

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+Of course the solution to this is to use a firm such as ours to do "third party" outsourcing for that same "consultant" protecting you.

Unemployment down to 8.2%

April 2012 • • • • • • • • • • • • • • • • • Featured Article Looking For a Short Cut Where None Exists Notable Global Events Spotlight on the BRIC Economies Growth of the Next Decade Spotlight on Oregon State Sees Slow but Steady Recovery • • • • • • • • • • • • • • • • • • • • • • • • • • • "The market for professional and management jobs has flipped in the past year in Chattanooga from being an employer-driven market to now more of a candidate-driven market," said Al Clark, the local franchise owner and general manager of Management Recruiters of Chattanooga. "Many job candidates who were competing for an offer 18 months ago are now getting multiple offers." Al Clark, Management Recruiters of Chattanooga As quoted in the Chattanooga Times Free Press March 30, 2012 Featured Article Looking For a Short Cut Where None Exists In January 2012, the unemployment rate was down year-over-year in 345 of the 372 U.S. metropolitan areas the Labor Department tracks. The number of metropolitan areas with unemployment over 10 percent nearly halved from 150 in January 2011 to just 86 in 2012. A consensus of economists surveyed by Blue Chip Economic Indicators last month projected the unemployment rate will be below 8 percent by the end of 2013. A recent report by a research economist at the Federal Reserve Bank of New York, however, showed a series of scenarios in which unemployment could actually fall to 6 percent as soon as early next year. Either way, we are in a period of recovery, and unless outside factors such as instability in Asia or Europe slow the U.S. economy, the improvement is set to continue. Hiring activity continues to increase as the economy gains speed. However, employers are finding fewer qualified applicants for their top positions. Even when multiple qualified candidates materialize, selecting among them is feeling more like gambling than science. Hiring managers today are hungry for ways to confidently screen out candidates. In fact, while most job seekers spend hours crafting a perfect resume, professional recruiters often don’t even look beyond the contact information. Instead, they opt to take a professional history through an interview. “Resume and cover letter advice has become so ubiquitous that candidates are following the same unwritten rules. Rejecting resumes that fail to fit the mold exactly becomes an easy way for hiring managers to trim a stack of resumes,” says Rob Romaine, president of MRINetwork. “By the end, there is a small pool of candidates who simply put the right polish on their job search. But it’s a filtering process that doesn’t take into account the qualities that actually cause someone to positively contribute to an organization.” The recent trend of interviewers requesting to see private social media profiles of candidates doesn’t stem from an interest in violating a candidate’s privacy. It’s the fallout of a talent market that has been coached and homogenized to a point where employers are desperate to find not just what makes one qualified candidate better than the other, but even just what makes them different. “Today, a social media profile that is clear of content that gives an interviewer pause is as likely to mean the profile has been sanitized as anything else, which makes looking at them virtually meaningless,” says Romaine. “While even the most detailed profile is going to provide little insight into how a candidate solves problems, overcomes challenges, or would interact with a team. These are the qualities that make A-players and they are qualities that are infinitely harder to screen for.” One important role outside recruiters can serve in the search process is their ability to interact with candidates outside the normal candidate-employer relationship. Agency recruiters will often interact with a candidate for months or sometimes years before sending them on an interview and will know many of their colleagues in a similar way. It gives the recruiter a much broader understanding of the candidate from which to evaluate how they will fit with an organization. “Going online for 15 minutes can help to eliminate a candidate, but it does little to highlight the positive attributes a candidate might bring. Conversely, interview techniques, like having candidates participate in a long-form group meeting with several members of a team might be time intensive, but can help to highlight someone who would thrive in an organization,” notes Romaine. “While moving quickly once a top candidate has been identified is important, vetting a candidate using shortcuts that don’t actually connect to performance or cultural fit is counterproductive.” Notable Global Events Germany’s unemployment rate fell to a two-decade low in March, slipping to 6.7 percent, beating economist forecasts. Experts took the improvement as a positive sign for efforts to counter the European debt crisis. A report by the Saudi American Bank Group projects UAE government investment in non-oil-related sectors would offset any slowdown in oil revenues and provide for robust growth for the country in the coming year. Spotlight on the BRIC Economies Growth of the Next Decade Shortly after stepping up to become the chief economist of Goldman Sachs in 2001—he had previously been co-head—Jim O’Neill was looking for a tent pole idea that he could be known for. The idea that began to crystalize was looking at the world a few decades out and predicting which countries would dominate the economic landscape. There were four that stood out as the new advanced economies. More than a decade later, Brazil, Russia, India, and China—the BRICs—have seen their influence in the world continue to grow. In 2001, the BRICs represented just 9 percent of the global economy. Today, they already represent nearly 18 percent. So far, the biggest error in O’Neill’s thinking is the rate at which the BRICs would expand.  In a follow-up paper in 2003, two of O’Neill’s colleagues projected the BRICs would surpass the G7 by 2037. By 2009, that figure was revised to 2027, and today economists are simply saying, “and maybe even sooner.” The impetus for O’Neill’s projection a decade ago, though, wasn’t Brazil’s skyrocketing commodity prices, or China’s growing domestic markets, or Russia’s ballooning petroleum revenue. He saw the primary growth vehicle of these countries as their talent markets. Of the group, Russia is the lightweight with the world’s 8th largest population—143 million people. Collectively, BRIC countries comprise more than 40 percent of the world’s population. More important than the sheer numbers, however, are the moves toward adding worker efficiency and upward mobility. China has gone from being a place to manufacture cheap, low-cost products to becoming one of the most efficient places in the world to not just manufacture, but also design high-tech electronics. Brazil has gone from having notorious income disparity to having a swelling middle class that is starting to bank, purchase luxuries, and plan vacations for the very first time. What started off as an almost off-hand acronym in a research paper a decade ago has transformed into a term that defines the economic superpowers-in-waiting. In 2009, leaders of the four countries held the first of what has become an annual summit of BRIC leaders and, in 2010, South Africa became a member of the organization now referred to as BRICS. As an organization of just five countries, though, BRICS is unique in that the members share neither geographical, cultural, political, or even economic heritage. By contrast, when the Group of 7 was formed in 1976, Japan was its only member from outside of Europe or North America. As much of the West plans for modest growth over the coming years, BRICS represents economies of opportunity in which investment and development is happening to a large degree and where new sources—and demands—for talent are likely to emerge. Spotlight on Oregon State Sees Slow but Steady Recovery Last year, President Barack Obama put in an appearance at a groundbreaking ceremony for a $6 billion Intel manufacturing facility in Oregon. The world’s largest chipmaker is currently the largest private employer in the state, accounting for nearly 21 percent of all personal income and 20 percent of all employment in Washington County. The new D1X fabrication facility is also the single largest construction project in the history of the state. “Right now the three largest building cranes in the world are right here in Portland,” says Peter Monsanto, managing partner at Management Recruiters of Portland. That’s good news for a region that has been hit especially hard during the recent recession. Oregon’s economy has now begun to show encouraging signs, even though employment isn’t expected to pick up significantly until 2013. But, although Oregon probably won’t recover all the jobs it has lost since 2007 until 2014, the private sector gained 38,000 jobs last year, up 2.9 percent from 2010. Over the past two-and-a-half years, the number of employed Oregonians has increased a little more than 60,000, while the number of unemployed has declined by nearly 53,000. The fact that the decline in unemployment has been matched by an even bigger increase in the number of employed workers is the biggest reason for the state’s declining unemployment rate. “Virtually all of the economic indicators are pointing up,” says Monsanto. “The flow of positive economic news continues to gain traction and provide hope for a better 2012.” He notes, for example, that the number of building permits issued in February increased by 34 percent, and points to the construction of a new Walmart in southeast Portland, a further indicator of improvement in the building industry. In addition to construction, sizeable gains are being seen in information technology, professional and business services, education, health care, and leisure and hospitality. Much of the growth is coming from small to midsize companies, where business owners and managers say the improved economic outlook affirms the increased activity they’re starting to see in their industries. “The impact of Oregon’s wine industry on the economy has grown tremendously over the past five years,” says Monsanto. “A spurt of investment in the industry from 2005 to 2008 boosted acreage, the number of wineries and industry employment. Despite the severe recession, efforts to improve marketing and quality have paid off with increased revenues and a broadening of markets.” In the manufacturing arena, A&K Development Co., a Eugene company that designs and manufactures equipment for processing crops, especially corn, also is seeing strength in exports, including a recent $2.5 million order from a single customer in Brazil. The company has annual revenue of more than $10 million and about 60 employees. Royal Caribbean’s Springfield call center, which now has almost 600 employees, contributed to gains in employment. The cruise line hired 205 employees at the end of last year, more than the 180 hires the company had planned to make. And as Oregon continues its steady recovery progress, it can also take pride in its recent designation as number one in the share of its workers – 5.8 percent – who regularly commute by bicycle to their jobs.

Is accepting a counteroffer ever a good idea?

By Debra Auerbach, CareerBuilder Writer

When an employee resigns, it's common for the employer to counter with another offer in order to persuade the employee to stay. It takes a lot of time and money for a company to find and replace valuable staff, so unless the decision is mutual, the company will want to do what it can to retain the employee. Given today's tough job market, who wouldn't want to be in a situation where two companies want you? Yet the counteroffer can often create more problems than it can solve.

Bing: Tips on negotiating a better job offer

When human-resources professionals and recruiters were asked whether accepting a counteroffer is ever a good idea, most replied with a resounding "no." A few cases were made for taking a counteroffer, but only if done so for the right reasons and in the right way.

"Recognizing all situations are unique and there is no 'one size fits all' answer, the potentially departing employee needs to consider a number of things when faced with this scenario," says Fred R. Cooper, managing partner at Compass HR Consulting.

Why accepting a counteroffer may backfire

You may lose trust. By telling your employer you've either been offered or accepted another position, you're essentially saying you've been unhappy. So even if your company does counter, how can it trust that you won't eventually stray again?

"By resigning, you've severed the bond of trust with your company," says Judi Perkins, career coach and founder of Find the Perfect Job. "It's like catching your partner cheating. There will always be that bit of doubt. You'll eventually leave the company, but next time it will be on their terms, not yours."

Elene Cafasso, president at executive coaching firm Enerpace Inc., agrees, saying, "You could be seen as a 'short timer' and be passed up for promotions, the best projects, etc. Your current employer may just counter [the] offer to keep you around long enough to get your replacement identified and trained."

You can burn bridges. Just as threatening to resign can leave a bad taste in your current employer's mouth, going back on an offer you accepted from another company can sour its view of you as well. Even if your acceptance was oral, it's still viewed as an agreement between you and the company. If you decide to stay put but things don't get better, you've burned a bridge with a company that may have been a better fit.

"If the hiring company has released the other candidates and announced your imminent arrival -- that you then renege on -- you just ruined your reputation with [a] top-rate company in your industry," Perkins says.

Your problem won't necessarily be solved. "If the person accepts the counteroffer and stays with their current employer, there is better than an 85 percent chance that the person will leave the company within six months," says Alan Fluhrer, CEO of recruiting firm Fluhrer & Bridges. "This is due to the fact that the underlying issues have not been resolved."

It shouldn't take a counteroffer to get what you want. It's rarely a good idea to look for a new job for the sole purpose of using it as a bargaining tool with your current company. Not only does that send the wrong message, but it shouldn't take you threatening to leave for your employer to see your value. "What does it say about your current employer if you have to basically blackmail them to get a fair salary, recognition and/or opportunities for advancement? Why would you want to stay?" Cafasso says.

You accepted the original offer for a reason. If you've accepted an offer from another company, you've likely done so after much contemplation and for a variety of reasons. Some may have to do with issues you're having at your current company, while others may be because you see opportunity at the new company. Cooper suggests thinking about the situation like this: "With this new job, I've made 'the cut': I'm the one they want. I've researched the company and its culture and it is someplace I want to be. I want this new opportunity for all the things offered and more -- it provides the financial, emotional, cultural and/or other things missing in my current employment."

When a counteroffer is worth considering

"Obviously each situation is different, but certainly accepting a counteroffer can be very appropriate, if it addresses the 'itch' that caused you to look at alternatives in the first place," says John Millikin, clinical professor of management at Arizona State University's W.P. Carey School of Business. "People tend to listen [to executive search calls] when they are unhappy with current assignments, feel blocked on advancement, have issues with their own management, etc. A successful counteroffer needs to address these concerns, as well."

When it comes to burning bridges with the company from which you accepted an offer, Millikin says there is always that chance. "You can, however, mitigate some of that by simply being as transparent [with the hiring company] as possible. If you were candid about why you might leave, it is easier to tell a convincing story about how your current employer truly addressed the concern."

Addressing the issues head-on

While the answer to whether you should accept a counteroffer isn't black and white, perhaps the best approach is to address the issues you're having at your current company before they get so bad they drive you to leave. If you tell your manager and nothing improves, then you'll never wonder whether things would have gotten better. You can move on to your next opportunity without looking back.

Debra Auerbach is a writer and blogger for CareerBuilder.com and its job blog, The Work Buzz. She researches and writes about job search strategy, career management, hiring trends and workplace issues.