Sooner or later, most business owners need to hire people to help them. You must obey federal and state tax and labor laws whenever you hire a helper. Let’s discuss the ramifications of hiring employees or independent contractors.

Hiring employees versus independent contractors

Hiring employees or self-employed independent contractors means following different labor rules. The IRS and other agencies determine which workers fall into which category.

For employees, you must withhold taxes from the person’s pay. You must also pay other taxes for the employee yourself. You must also follow complex and burdensome bookkeeping and reporting requirements.

Also, a host of federal and state labor laws apply whenever you hire an employee. These can include workers’ compensation and unemployment insurance coverage.

If you hire an independent contractor, you need not follow any of these requirements. The independent contractor pays their own self-employment tax dues. All you have to do is report the amount you compensate the contractor to the IRS and your state tax department.

But, hiring an independent contractor is not necessarily cheaper than hiring an employee. Some independent contractors charge far more than what you’d pay an employee to do similar work. Still, many prefer to hire contractors instead of employees because of the lesser tax and legal burdens.

Pros and cons of hiring employees

There are advantages and disadvantages to hiring employees and independent contractors.

Pros

  • You don’t need to worry about government auditors claiming you misclassified employees
  • You can closely supervise employees
  • Employees can get extensive training
  • Employees can’t sue you for damages if they are injured on the job provided you have workers’ compensation insurance
  • You automatically own any intellectual property employees create on the job
  • Employees generally can be fired at any time.

Cons

  • You must pay federal and state payroll taxes for them
  • You must provide them with office space and equipment
  • Liable for your employees’ actions
  • Provide employees with workers compensation coverage
  • You ordinarily provide employees with benefits such as vacations and sick leave
  • You can be sued for labor law violations.

Pros and cons of hiring independent contractors

Pros:

  • You don’t have to pay federal and state payroll taxes
  • You don’t have to provide office space or equipment
  • Generally not liable for their actions
  • You don’t have to provide workers’ compensation insurance
  • Provision of employee benefits not necessary
  • Your exposure to lawsuits for labor law violations is reduced.

Cons:

  • You risk exposure to audits by the IRS and other agencies
  • You can’t closely supervise or train
  • The possibility of losing copyright ownership if you don’t get an assignment of rights
  • They can sue you for damages if they are injured on the job
  • They may work for your competitors as well as you.
  • Usually, you can’t terminate them without liability unless they violate their contracts.

Hiring temporary help

If you need extra help, one option is to hire a “temp” from a temporary help agency. When you hire a temp, you do not hire an individual worker yourself. You contract with the temp agency to provide you with a service. That service is a person who will perform specified tasks for your business.

The temp is an employee of the temp agency. The temp agency pays the temp’s salary and payroll taxes. The agency also provides workers’ compensation coverage.

It may cost more per hour to hire a temp, but you will save on paperwork and won’t need to worry about the status of your worker. Make sure to deal with a reputable agency that satisfies
 all employer tax and insurance requirements.

If the agency fails to pay the temp’s payroll taxes or provide workers’ compensation coverage, you could end up having to foot the bill.

Determining worker status

It’s up to you to determine whether any person you hire is an employee or an independent contractor. If you decide that a worker is an employee, you must follow the legal requirements covered below. If you decide the worker is an independent contractor, there are simpler requirements.

Your decision about how to classify a worker is subject to review by various government agencies. This includes:

  • The IRS
  • The Department of Labor
  • Your state’s tax department
  • State labor department regulations
  • State unemployment compensation insurance agency rules
  • Your state’s workers’ compensation insurance agency.

Any agency may determine that you misclassified an employee as an independent contractor. They may also impose back taxes, fines, and penalties.

Scrutinizing agencies use various tests to determine whether a worker is an employee. The determining factor is usually whether you have the right to control the worker.

The worker is your employee if you have the right to control the way a worker does their work. They’re an independent contractor if your control amounts to accepting or rejecting the final results.

The employer may not always exercise this right of control. For example, if an employee is experienced and well trained, you may not feel the need to supervise him or her closely. But if you have the right to do so, the worker is still considered an employee.

Determining who is an independent contractor

A worker is an independent contractor if the hiring firm doesn’t have the right to control how they do their job. Unlike an employee, the worker is not supervised daily.

It can be challenging to figure out whether a hiring firm has the right to control a worker. The factors each government agency relies upon to measure control vary.

Some agencies look at 14 factors to see if a worker is an employee or an independent contractor. Others look at 11 factors, and others consider only three. Which of these elements is of the greatest or least importance is anyone’s guess.

This makes it very difficult to know whether a worker is an independent contractor or employee.

Legal responsibilities when you hire employees

Whenever you hire an employee, you take on a variety of legal responsibilities. The more employees you have, the more onerous the legal rules.

For example, employers with more than 50 full-time employees must fully comply with Obamacare’s employer mandate. This means they have to provide their employees with health insurance or face significant monetary penalties.

Wages and hour laws for employees

State and federal labor laws apply when you hire an employee. These require that you must pay employees at least the minimum wage plus time-and-a-half for overtime. Note: there are some important exceptions to this.

Nondiscrimination rules

A host of federal and state nondiscrimination laws apply to employers. These bar employers from discriminating against a job applicant and employees. This includes the basis of race, age, gender, pregnancy, disability, religious beliefs or national origin.

Credit investigations

You must get written consent from a job applicant before obtaining a credit report. If you don’t hire the applicant, you must give him or her certain information about the report.

Worker verification

You must verify that a new employee is a legally authorized to work in the United States. Complete Form I-9, Employment Eligibility Verification and keep it in your records. You can get more details here.

Social Security and Medicare taxes

The IRS imposes Social Security and Medicare taxes on both employers and employees. If you hire an employee, you must collect and remit his or her part of the taxes by withholding it from paycheck amounts and sending it to the IRS. You must also pay a matching amount yourself for each employee.

The IRS determines the amounts you must withhold and pay each year.

Federal income tax withholding

As an employer, you must calculate and withhold federal income taxes from all your employees’ paychecks. Employees are responsible for paying federal income taxes. The employer’s only responsibility is to withhold funds and remit them to the government.

New hire reporting

You must report new hires to a state agency so that parents who aren’t paying required child support can be located.

Unemployment insurance

Federal law requires that all states provide most types of employees with unemployment compensation. Employers must contribute to a state unemployment insurance fund.

Employees make no contributions, except in Alaska, New Jersey and Pennsylvania. Employees are entitled to receive unemployment benefits from the state fund. There are a few exceptions to this, though.

Workers’ compensation insurance

Employers in all states must provide their employees with workers’ compensation insurance to cover work-related injuries or illnesses. Workers’ compensation is not a payroll tax. You must purchase a workers’ compensation policy from a private insurer or state workers’ compensation fund. Again, there are some exceptions to this.

Legal responsibilities for independent contractors

With contractors, you don’t have to worry about many of the rules that apply to employees. Yet, you will have some obligations. If you pay an unincorporated independent contractor $600 or more during the year. Your responsibilities include:

  • File IRS Form 1099-MISC telling the IRS (and your state tax agency) how much you paid the worker
  • Get the independent contractor’s taxpayer identification number. If they don’t have one, you need their Social Security number.

Do you have to do backup withholding for independent contractors?

In some cases, the IRS requires you to withhold taxes from the compensation you pay and remit them to the IRS. This is called “backup withholding.”

If you fail to backup withhold where required, the IRS will impose an assessment against you as a percentage of what you paid the contractor. Backup withholding can be a bookkeeping burden for you.

Fortunately, it’s very easy to avoid. Have them fill out and sign IRS Form W-9. Retain it in your files.

You don’t have to file the W-9 with the IRS.

New hire reporting for independent contractors

Some states impose new hire reporting requirements on businesses that hire independent contractors. These states include:

  • Alabama
  • California
  • Connecticut
  • Iowa
  • Maine
  • Massachusetts
  • Minnesota
  • Nebraska
  • New Hampshire
  • New Jersey
  • Ohio.

Each state has specific requirements.

Can independent contractors hire employees?

Sure. As a self-employed person, you’re technically your own business. Businesses are allowed to hire employees. Make sure you follow the above requirements. You may also want to look into how your business is legally organized to make hiring easier.

Stephen Fishman

Stephen Fishman

Stephen Fishman is a self-employed tax expert and regular contributor to MileIQ. He has dedicated his career as an attorney and author to writing useful, authoritative and recognized guides on taxes and business law for entrepreneurs, independent contractors, freelancers and other self-employed people. He is the author of over 20 books and hundreds of articles, and has been quoted in The New York Times, Wall Street Journal, Chicago Tribune, and many other publications. Visit Fishman Law and Tax Files for more information on his work.
Stephen Fishman