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W-2 vs 1099: Which should you choose?

Ah, the age old question, should I hire this person as an employee of the company (W-2) or should this person be an independent contractor (1099)? To answer this question, we need to understand what this terminology means in order to make an assessment of how we are going to approach the classification of the individual. Let’s start :

What is a W-2 or W-2 type of employee?

What is a 1099 or 1099 type of individual?

Keep in mind that the above is not an all-inclusive list of questions or considerations in making your determination, however, it is intended to provide you some guidance on the proper way to classify an individual when you are in the process of introducing new members to the team.

At a high level, each of these classifications has its own set of responsibilities and financial obligations not only for the employer but also for the employee or independent contract, nevertheless, what’s important to remember is that the decision you make is based on a well thought out process and not just a quick response. Just because you might not want to have the burden of paying taxes or offering benefits, making all your workers 1099 might not be the right choice. Making an uneducated or not so well thought out decision can lead to serious consequences that could ultimately hit you bank account. I have seen many small businesses receive guidance that hiring all staff as a 1099 is appropriate, and it might well be the case sometimes if you can demonstrate a justification for it, but in my experience 9 times out of 10 having all staff members as 1099 sticks out as a sore thumb and becomes a red flag for auditors and government agencies.

The IRS, as well as the Department of Labor (DOL) have defined penalties, fines, and consequences for a misclassified employee. For example, the IRS has fines up to 41% of the individuals’ income if they are misclassified without any reasonable justification. The DOL has fines that can go back two to three years related to unpaid overtime wages, benefits costs, unpaid taxes and unpaid leave just to name a few. These are all costs that would need to be paid by the employer and depending on how many employees you have can lead to lots of money as most agencies calculate the fines and penalties by the amount of employees in an organization.

Now to answer the question on which to choose, the best tip I can give you is to side on the side of being cautious, if you are not completely convinced that the person would classify as an independent contractor (1099) based, at least, on the questions above then classify that individual as an employee (W-2).  If you, or your HR team, need assistance with navigating through these classifications and understanding if you are protecting your company from this financial risk, please reach out to our team of professionals for a free consultation. We can help assess your potential risk, devise a plan to mitigate this risk and put the company back on track to protect your business.  

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