Tempting fate October 28 - November 3, 2011 BUSineSS JOURnAL PhOTO | Marcus R. Donner October 28 - November 3, 2011 | Vol. 32, No. 27 | pugetsoundbusinessjournal.com | $3.00 mAn And Rhi $3 million Tempting Fate Got ‘contractors’ who are really employees? The IRS is offering amnesty if you come clean, Got ‘contractors’ who but some experts warnare thatreally could employees? be a mistake The IRS is offering amnesty if youBy CMYK: come clean, butright some experts that could be a mistake 100C, 90M, 10Y JULIA ANDErSON increased Sept. 19, warn when the U.S. Labor Department Pantone process uncoated: 2945 CONTRIBUTING WRITER announced an agreement with Uncle ANDErSON Sam’s autumn crack- taxes, 11 states, includingand WashingBy JULIA benefits protections. advisers — remain cautious about down on companies that mis- ton. The deal enables all conexperts say the line between the IRS offer. C O Nclassif T R I B Uy T employees I N G W R I T EasR con- But cerned to share information “The real risk is that the U.S. contractor and employee isn’t tractors is turning out to be a on worker classification with work inautumn progress.crackdown always the IRS that and agencies Department of Labor and state Uncle Sam’s clear. such as The Internal Revenue SerWashington’s Department of on companies that misclassify The stakes in getting it right agencies have different standards vice announced last month it Labor and Industries. employees as contractors is turnincreased when would give businesses that Two daysSept. later19, came thethe U.S. than the IRS for who is an indehad is clas si f y i ng Labor IRS amnest y offer — offiing out to be been a workmin progress. Department announced pendent contract worker,” Lane such workers a cially called The Internal Revenue Service an agreement with 11 the states, in- Powell’s Reilly said. “This may chance to come Voluntary Clasannounced cluding Washington. look good on the surface, but it cleanlast andmonth avoid sification Settleenables all could be poison.” it would back givetaxes. business- “The iRS relief The ment deal Program. Butbeen the IRS T he idea is to to share Confusion aside, there’s no es that had misconcerned also threw cold give employers offer is really Viaduct wrecking thatgives federal and state firm c classifying such workinformation on work- questionjob water on its ama chance to reers a chance tofer come classification with authorities are ramping up comnest y of by whipped cream er classify workers saying it might properly without StEVE WILhELm demoliton pho efforts in the face of More what clean and avoid back the IRS and agencies Bypliance STaff WRITER share informahaving to worry pugetsoundbusinessjou as Washington’s they see as improper worker clastaxes. tion about workon arsenic.” such a b o ut p a y i n g sification. drivers, the But the IRS also Department of Labor ers’ classificaback interest or To Seattle-area Rhine’s job was to tion with other penalties. closure ofRep. the Alaskan Way Via- part of Seattle’s sou mIchAEL rEILLy Jim McDermott, D-Seattle, and Industries. threw cold water on f e d e r a l a n d E m p l o y e r s duct was just something to get in just nine days. Tw LaNE POWELL PC its amnesty offer by Two days later came an advocate of tougher enforcestate agencies must treat the around. firm’s giant concret ment, recentlyLLC, called amnes- some o saying itthat might the IRS amnesty offer couldshare imworkers as emTo Rhine Demolition it the ing machines, pose their own ployees going was the biggest job of the year. some right chewe information about workers’ clas- — officially called the Voluntary ty program a “step in the green, penalties and rules. forward, and pay 10 percent sification with other federal and Classification Settlement Pro- direction.” Employers, he told “The IRS relief offer is real- of the previous year’s payroll state agencies that could Theprogram idea isistoopen givetoemploy- Bloomberg News, “have been ly whipped cream on impose arsenic,” gram. taxes. The their own penalties and Reilly, rules. who ers a chance tosizes reclassify warned Michael companies of all and hasworkers getting away with murder for labor law at Lane no deadline. “The practices IRS relief offer is properly without having to worry years.” Powell PC in Seattle. Despite that inducement, The Obama administration’s really whipped arsenic,” paying interest or Thesecream mixedon signals are about employers — andback their legal W most recent budget plan outlined warned adding Michael who practo Reilly, the complexity of penalties. advisers — remain cautious an law already scarPowell y scenario the IRS offer. tices labor at Lane PC about Employers must treat the work- how stricter IRS guidance that for businesses. The govern“The real risk is that the ers as employees going forward, would reclassify some contracin Seattle. ment has been stepping up U.S. Department of L abor These pressure mixed signals are adding pay 10 percent ofdifthe previ- tors as employees could generate on employers who and and state agencies have T misclassify workers to avoid ferent standards than the IRS doi to the complexity of an already ous year’s payroll taxes. The pro- $8.7 billion in tax revenue over taxes, benefits and protec- gram for whoisis open an independent con- of all the next 10 years. adm to companies scary scenario for businesses. tions. But experts say the line tract worker,” Lane Powell’s T Industries in Washington state The government has been no deadline. between contractor andstepem- sizes Reilly and said.has “This may look tem BUSineSS JOURnAL PhOTO | Marcus R. Donner cial isn’t always that clear. good on the surface, it that are particularly vulnerable to ping upployee pressure on employers Despite that but inducement, T he stakes in getting it could be poison.” attr TRAnSPARenT: Eric Stowe, founder of A Child’s Right, home who misclassify workers to avoid employers — and their legal tighter regulation include Crushin G See AmNESTY | 28 shows filtration systems. When iron polluted a water supply and in Nepal, the nonprofit disclosed the problem. Government goes after misclassified workers builders, hotels and restaurants, day care centers, janitorial services and logging. Mike Subit, a Seattle attorney with Frank, Freed, Subit & Thomas who often represents employees in misclassification cases, said neither employers nor employees understand how determined federal and state agencies are in taking on the contract employee issue. “Eight out of 10 times when a case comes to me, the independent contractor agreement won’t pass muster,” Subit said. “It’s a serious problem.” Carl Hammersburg, manager of the state Department of Labor & Industries fraud prevention and compliance division, said worker misclassification by Washington employers is “significant.” Last year, L&I conducted 5,100 compliance audits and found 69 percent of those employers with a “reporting problem,” among them misclassification. Total underreported taxes and workers’ compensation payments: $30 million. “Employers can work simultaneously with us and the IRS to reclassify employees,” Hammersburg said. “If a company wants to change its reporting to us, to come clean, we can work out a payment plan.” Hammersburg said his agency’s Q&A website that deals with contract worker regulations has received 4,000 hits. “We set that up in response to the Tips for employers needs of small busiState and federal authorities are giving more ness owners,” he scrutiny to the use of independent contracsaid. tors. To avoid legal and tax problems, here Small employers are some suggestions for hiring contract workers: are particularly vulnerable to employee — Consider using a temporary employment misclassification agency to make the hire. regulations, said — Have a written document that spells out the Kristina Hayek, a work of the independent contractor. Seattle educator and — Check out Washington’s RCW 51.08.195 reguexpert on workplace lations covering contract work. human resource — Conduct a self-audit of your employee group issues. to make sure you are in compliance. — Instruct managers and lower-level supervi“If an employer is sors on contract work regulations. not used to setting up — Hire a consultant to bring you up to speed on contract employee contract law. work, it’s really great if they can use a third Source: Lane Powell PC party like a temp employment agency,” Hayek said. “These folks are independent contractor,” Reilly said. “You don’t give contract experts.” There are many reasons why an employees a key to the building employer would want to use con- or a card that says they are an tract workers for a special project employee. You don’t invite them to the company picnic. They have to hold down costs. “It’s a way to tap into people to be treated like they are not emwith specialties without pay- ployees.” As for employers who may be ing benefits and all that,” Hayek considering the new IRS amnessaid. “But if employers are savvy, they’d better get a good definition ty offer, Reilly advises that they of contract work versus regular look at the big picture and carefully consider their wider vulneremployment.” Lane Powell’s Reilly advises abilities and possible costs before employers large and small to signing up. “On its face, if you know you’ve conduct a “self-audit” of their employee group when entering got an exposure with the IRS, into any contract worker relation- the program may offer a good ship to make sure that the job is savings on taxes owed,” he said. structured as close to federal and “But if you then have exposure for state workers’ compensation state standards as possible. “You must have a written docu- and state unemployment insurment spelling out the work and ance payments, it could be a difthat this person is strictly an ficult situation.” Reprinted for web use with permission from the Puget Sound Business Journal. ©2011, all rights reserved. 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