International Contractors

EOR vs. Independent Contractor: Misclassification Risks

May 23, 2023

Working with freelancers — otherwise known as independent contractors — is an increasingly common way for startups to grow without the expenses that come with full-time employees, such as hiring, taxes, and benefits

Independent contractors usually have the skills to hit the ground running with relatively little training, giving businesses the flexibility to increase and reduce their capacity according to their needs — so it’s no wonder the gig economy is booming in the US and worldwide. 

But business owners should beware: working with independent contractors carries employee misclassification risks — especially if they’re in other countries where different laws and regulations apply. 

To help you avoid a run-in with the law, this article will cover the main risks associated with independent contractor misclassification — and how an EOR can help you avoid them. 

What Is Independent Contractor Misclassification?

Independent contractor misclassification refers to the practice of incorrectly giving a team member independent contractor status when they should be classified as an employee in the eyes of the law. 

Running a successful startup means you need to be aware of the definitions of independent contractors and full-time employees in every country where you have team members. This poses a challenge for global, remote employers, but the risks of misclassification are too hefty to ignore. 

Misclassification: the Biggest Threats to Your Business

The penalties associated with independent contractor misclassification vary from one country to another and depend on the specific circumstances, but they may include one or more of the following. 

Legal and Regulatory Compliance

Misclassifying independent contractors is an infringement of local labor laws, including the laws governing:

  • Minimum wages
  • Overtime pay
  • Tax withholding
  • Employee benefits
  • Paid time off
  • Parental leave
  • And more

If you’re caught misclassifying independent contractors, you may face penalties, fines, and legal consequences for violating these laws.

Tax Obligations

Independent contractors are responsible for paying their own taxes, whereas employers are responsible for withholding and remitting taxes for their employees. Many business owners are tempted to work with independent contractors to capitalize on these potential tax savings, but doing so would be a mistake. 

Misclassifying an employee as an independent contractor could cost you more in the long run in the form of unpaid employment taxes to the government, including income tax, social security, and Medicare contributions in the US.

Employee Benefits

Employers must offer benefits such as health insurance, pension plans, paid time off, and gym memberships to their employees (the minimum requirements depend on the employee’s country of residence).

By working with an independent contractor who should be an employee, you deny them their right to these benefits, which can negatively impact their well-being and potentially lead to legal disputes.

Employment Protections

Employees are protected by various labor laws, including anti-discrimination laws, the Family and Medical Leave Act (FMLA) in the US, and other country-specific workplace protections. Independent contractors typically do not have the same level of legal protection, and misclassifying them can deprive them of these rights and protections.

Lawsuit Risks

Misclassifying an employee as an independent contractor may lead to legal disputes over the nature of the working relationship.

If a team member feels they are being misclassified and should be considered an employee, they may file complaints or lawsuits against the company, seeking employee status and the associated benefits.

Ultimately, this kind of legal action will end up costing the company more money than hiring an employee would have — and possibly its reputation, too.

Penalties for Independent Contractor Misclassification

Misclassifying independent contractors is unethical, and the penalties associated with it are not worth the risk. They include:

Penalties and Fines

Government agencies such as the Department of Labor (DOL) and the Internal Revenue Service (IRS) in the US are vigilant about enforcing proper employee classification. If they find a business has misclassified an independent contractor, it may be subject to penalties and fines. 

The exact amount varies depending on the jurisdiction and the severity of the violation, but these fines can be significant and add up quickly, putting a strain on the company’s finances. 

You could also face the following criminal penalties if you’re caught with a misclassified contractor:

  • Fines of up $1,000 per misclassified employee
  • Jail time for up to a year
  • Class-action lawsuits seeking punitive damages (plus the associated legal fees)

Back Wages and Overtime Pay

Misclassified independent contractors may be entitled to receive back wages and overtime pay if they should have been classified as employees — and they come out of the employer’s pocket.

In some cases, you may be held responsible for providing retroactive compensation for unpaid wages — including overtime rates — for the entire duration of the misclassification. Calculating and settling these back payments can lead to substantial financial burdens for the startup.

Unpaid Taxes and Benefits

When you misclassify an employee as an independent contractor, you may owe employment taxes, such as social security, Medicare, and unemployment taxes. If the relevant authorities discover you’ve misclassified your employee, you’ll be liable for all of these costs in arrears. 

Additionally, the misclassified employees may seek access to employee benefits such as health insurance, retirement plans, and workers’ compensation — further adding to the financial implications for your business.

Legal Disputes and Lawsuits

Misclassified independent contractors may file legal claims against the employer, seeking reclassification as employees and claiming entitlement to employee benefits, protections, and rights. 

These lawsuits can be time-consuming, costly, and damaging to the company’s reputation. Legal fees, settlement costs, and potential rulings can significantly impact the financial health and future prospects of the business.

Avoid Independent Contractor Misclassification with an EOR

Given the many risks associated with independent contractor misclassification, it’s not surprising that more and more global employers are now turning to employer of record (EOR) platforms to help them avoid it. 

Here are just a few of the ways an EOR can give you peace of mind by minimizing the legal risks — as well as the costs. 

Clear Employment Status

Partnering with an EOR enables you to offer your team members full-time employee status, no matter where in the world they live. By offering them an employment contract, you guarantee that they’ll receive all the benefits and protections of an employee, such as minimum wage, overtime pay, and other legally mandated benefits. 

Best of all, the EOR assumes responsibility for proper classification and compliance with labor laws — making this option accessible for businesses of all sizes.

Compliance with Labor Laws

EORs specialize in employment and labor law compliance and have a deep understanding of the legal requirements related to employee classification, tax withholding, benefits, and other employment obligations. 

By partnering with an EOR, businesses can rely on their expertise to ensure compliance with relevant laws and regulations, reducing the risk of misclassification and the associated penalties.

Payroll and Tax Administration

EORs handle payroll administration, including accurate tax withholding, remittance, and reporting. This includes income tax, social security, Medicare, and other employment taxes. 

By entrusting payroll and tax responsibilities to an EOR, business owners can be confident that these crucial aspects are handled correctly, mitigating the risk of misclassifying independent contractors and facing tax liabilities.

Comprehensive Employee Benefits

When workers are hired as employees through an EOR, they become eligible for comprehensive employee benefits. These benefits may include health insurance, retirement plans, paid time off, and other perks that can enhance worker satisfaction and engagement. By offering these benefits, businesses can attract and retain top talent without the risk of misclassification.

Reduced Legal and Financial Risks

Working with an EOR helps mitigate the legal and financial risks associated with misclassification. EORs assume responsibility for compliance, reducing the burden on startups to navigate complex labor laws and potential legal disputes.

In the event of audits or inquiries, the EOR is responsible for handling any investigations and mitigating potential penalties, freeing up the employer’s team to focus on core business operations.

Stay Compliant Anywhere in the World with Remofirst

While working predominantly with independent contractors may be tempting, any short-term gains are usually outweighed by the potential risks of misclassification.

Partnering with an EOR like Remofirst lets you hire employees compliantly in over 150 countries. To learn more about the benefits of hiring employees over working with independent contractors, check out this article.