1. But when it comes to Employee vs. Independent Contractor…disguises just don’t work! 1

2. Are You Sure Your Independent Contractors Are NOT Your Employees? Jim Whitton, Attorney Brackett & Ellis, P.C. 2

3. Why is this important? 3

4. According to the 2010 Census Report 10.3 Million Workers Classify Themselves as Independent Contractors 4

5. According to estimates from the Government Accountability Office $2.72 billion in lost revenues for the federal government 5

6. Federal lawmakers Private Individuals Federal and State Agencies 6

7. Joint Initiative Between DOL and IRS Six page MOU signed September 19, 2011 by the Commissioner of Internal Revenue and the Secretary of Labor 7

8. DOL Strategic Plan for Fiscal 2011-2016 targets specific industries Construction Janitorial Home health care Child care Transportation and warehousing Meat and poultry processing Professional and personal service industries 8

9. BUT…COLLEGES AND SCHOOL DISTRICTS ARE NOT 9

10. Independent ContractorEmployee No withholding is requiredWithhold taxes such as federal income tax, unemployment tax Payments reported on a Form 1099Payments and taxes reported on a Form W-2 Generally not entitled to benefits such as sick days, retirement, and insurance. Generally entitled to benefits and most are covered by the Teacher Retirement System of Texas (TRS) Do not benefit from legal protections, ex. workers’ compensation Enjoy various legal protections when serving in their role as a public school employee 10

11. Education institutions are being investigated by our friends at the Internal Revenue Service (IRS) for incorrectly classifying individuals as independent contractors when they should be paid as employees. 11

12. In an audit, no stone is left unturned… All payroll records, journals, and other records of compensation General ledger Cash disbursement journal/check register Forms w-2,w-3,w-4, 1099, etc. Annual financial report Copies of all contractor contracts List of all people who paid rent for use of facilities, equipment, etc. Vehicle usage and policies Employee Handbook Expense reimbursements Vendor lists And the list goes on…. 12

13. Why use Independent Contractors? 13

14. Benefits of Independent Contractors Flexibility 14

15. Benefits of Independent Contractors Flexibility No income taxes withholdings 15

16. Benefits of Independent Contractors Flexibility No income taxes withholdings No payment of payroll taxes or unemployment insurance premiums 16

17. Benefits of Independent Contractors Flexibility No income taxes withholdings No payment of payroll taxes or unemployment insurance premiums Avoid benefit costs 17

18. Benefits of Independent Contractors Flexibility No income taxes withholdings No payment of payroll taxes or unemployment insurance premiums Avoid benefit costs No need for training 18

19. Benefits of Independent Contractors Flexibility No income taxes withholdings No payment of payroll taxes or unemployment insurance premiums Avoid benefit costs No need for training Not liable (usually) for worker torts 19

20. Benefits of Independent Contractors Flexibility No income taxes withholdings No payment of payroll taxes or unemployment insurance premiums Avoid benefit costs No need for training Not liable (usually) for worker torts Avoid liability for employment-based claims 20

21. Disadvantages of Independent Contractors loss of control over workers less stable work force decreased worker loyalty And …. 21

22. Misclassification Issues 22

23. Misclassification Issues Tax 23

24. Misclassification Issues Tax FLSA 24

25. Misclassification Issues Tax FLSA Benefit/ERISA 25

26. Misclassification Issues Tax FLSA Benefit/ERISA Other employment laws 26

27. Misclassification Issues Tax FLSA Benefit/ERISA Other employment laws Unknown/Unforeseen exposure 27

28. Misclassification Issues Tax FLSA Benefit/ERISA Other employment laws Unknown/Unforeseen exposure 28

29. Misclassification Issues Tax FLSA Benefit/ERISA Other employment laws Unknown/Unforeseen exposure Domino Effect 29

30. Are your workers independent contractors? 30

31. Worker Status Tests Common Law – Right to Control Test Economic Realities Test Hybrid Test IRS Test TWC Test 31

32. Right to Control Test 32

33. Right to Control Test Does the college or district instruct the individual as to when, where, and how work is performed? Is the work usually done under the direction of the college or district? Who supplies tools and materials? Does the college or district set the hours of work? Is the work performed on college or district property? What specific training and/or instruction does the college or district provide? Does the college or district pay the individual by the hour, by daily rate, by the week, or by month? Is the work part of the regular business? What is the intent/belief of the parties? 33

34. Economic Realities Test Employee benefits FLSA FMLA 34

35. Economic Realities Test Does the college or district have the right to control the manner and means by which the product is accomplished? What is the level of skill required? What is the source of the instrumentalities and tools? What is the duration of the relationship between the parties? Does the college or district have the right to assign additional projects to the individual? What is the extent of the individual’s discretion over when and how long to work? What is the method of payment? What is the individual's role in hiring and paying assistants? Is the work part of the regular business of the college or district? Is there the provision of employee benefits? What is the tax treatment of the individual? 35

36. The Hybrid Test Combines Right to Control and Economic Realities Test Commonly used in Title VII (discrimination) cases 36

37. The IRS Test Behavioral control Financial control Type of relationship of the parties 37

38. Behavior Control Does the college or district have a right to direct and control task performed? – Considers instructions When and where does the work occur? What tools or equipment to use? What workers to hire or to assist with the work? Where to purchase supplies and services? What work must be performed by a specified individual? What order or sequence to follow? – Training provided 38

39. Financial Control Focuses on facts that show a worker’s opportunity to realize a profit or loss Examines extent the worker has unreimbursed business expenses Considers the extent of the worker's investment Considers extent the worker makes services available to the relevant market Examines how the business pays the worker 39

40. Type of Relationship Written contracts describing the relationship the parties intended to create Whether the college or district provides the individual with employee- type benefits such as insurance, a pension plan, vacation pay, or sick pay What is the permanency of the relationship? The extent to which services performed by the worker are a key aspect of the regular business of the college or district 40

41. Texas Workforce Commission Test Under the Act, “employment” means a service, including service in interstate commerce, performed by an individual for wages or under a express or implied contract of hire, unless it is shown to the satisfaction of the Commission that the individual’s performance of the service has been and will continue to be free from control or direction under the contract and in fact Adopted old IRS 20-Factor Test 41

42. What can we do to reduce risks and liabilities? 42

43. Playing it Safe Consistency in your reporting Educate your campus and administrators Treat all workers who perform similar service the same Go through the factors to determine Right to control behavior Right to control financial aspects The nature of the relationship Make certain your method of performing criminal background checks is aligned And… 43

44. Reducing Misclassification Risks and Liabilities Know your workforce 44

45. Reducing Misclassification Risks and Liabilities Know your workforce Pay attention to your contracts 45

46. Contracts for IC Avoid using the word “control” and similar terminology. State that the IC controls manner and means of work. Make clear that the college or district is only interested in the result. Specifically state that the relationship is one of independent contractor. Use IC’s business format (i.e. corporation, LLC, LLP). Make payments to the worker’s business entity, as opposed to the individual. Place responsibility for taxes, insurance, business licenses on IC Make IC responsible for own employees, general liability insurance, unemployment and workers’ compensation or non-subscriber alternative plans for any of their own employees, and all applicable taxes for his/her employees. Require only compliance with industry standards. Do not require progress reports or performance reviews. Avoid payment by the hour, day or week. Pay by the project or task. Avoid requiring specific hours or days to work. Avoid requiring specific location where the work must take place, if possible. Specifically state IC to provide his/her own tools, equipment, supplies and related items. Include a waiver of any right to participate in any college or district benefits. Specify the length of the relationship, rather than an indefinite period of time. Specify that IC can provide services to others. Avoid contract provisions allowing for termination at will. Specify cause for contract termination. Specify IC responsible for own training, continuing education. 46

47. Reducing Misclassification Risks and Liabilities Know your workforce Pay attention to your contracts Educate campus and administrators 47

48. Reducing Misclassification Risks and Liabilities Know your workforce Pay attention to your contracts Educate campus and administrators Conduct internal audits 48

49. Reducing Misclassification Risks and Liabilities Know your workforce Pay attention to your contracts Educate campus and administrators Conduct internal audits Review employee compensation policies 49

50. Reducing Misclassification Risks and Liabilities Know your workforce Pay attention to your contracts Educate campus and administrators Conduct internal audits Review employee compensation policies Review ERISA plans 50

51. Reducing Misclassification Risks and Liabilities Know your workforce Pay attention to your contracts Educate campus and administrators Conduct internal audits Review employee compensation policies Review ERISA plans Consider an internal complaint process 51

52. Reducing Misclassification Risks and Liabilities Know your workforce Pay attention to your contracts Educate campus and administrators Conduct internal audits Review employee compensation policies Review ERISA plans Consider an internal complaint process Be careful of reemployment of former employees 52

53. Reducing Misclassification Risks and Liabilities Know your workforce Pay attention to your contracts Educate campus and administrators Conduct internal audits Review employee compensation policies Review ERISA plans Consider an internal complaint process Be careful of reemployment of former employees Change business model 53

54. Reducing Misclassification Risks and Liabilities Know your workforce Pay attention to your contracts Educate campus and administrators Conduct internal audits Review employee compensation policies Review ERISA plans Consider an internal complaint process Be careful of reemployment of former employees Change business model Take advantage of IRS provisions 54

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56. Questions? 56 #399964 Jim Whitton Brackett & Ellis, P.C. 100 Main Street Fort Worth, Texas 76102-3008 jwhitton@belaw.com 817-339-2473