Employee Misclassification: Independent Contractor vs. Employee

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Employee misclassification can stem from inadvertent errors in some organizations or, in more severe cases, as a deliberate attempt to reduce costs and evade employment-related taxes. Nevertheless, the potential legal and financial repercussions of misclassifying workers far outweigh any perceived advantages. This guide will provide you with a comprehensive understanding of what employee misclassification entails, the distinctions between employee and contractor arrangements, and guidance on how businesses can accurately classify their workforce.

What is employee misclassification?

Employee misclassification is the illegal practice of categorizing workers as independent contractors when they should be classified as employee status, which entitles them to certain worker protections and benefits. 

Employee misclassification is also called worker misclassification or independent contractor misclassification. 

Worker classification hinges on factors like a worker’s financial relationship with a company and the degree of flexibility and control over their work. We’ll explain these factors in more detail later in this article. 

What’s the difference between Contractor and Employee

Control and Autonomy:

Contractor: Independent contractors typically have a greater degree of control and autonomy over their work. They have the freedom to set their own schedules, choose their methods of completing tasks, and often work with multiple clients simultaneously. Contractors are responsible for managing their own work and are not subject to direct, day-to-day supervision from the hiring company.

Employee: Employees, on the other hand, work under the direct control and supervision of the employer. They follow the company’s policies, procedures, and guidelines, and their work is often closely monitored. Employers dictate the hours, location, and methods of work for employees. This level of control is a defining characteristic of an employer-employee relationship.


Contractor: Independent contractors are considered self-employed, which means they are responsible for handling their own taxes. They receive payments from clients or employers without taxes withheld, and they must pay both income and self-employment taxes. Contractors can often deduct business-related expenses, which can reduce their overall tax liability.

Employee: Employees have taxes withheld from their paychecks by their employers, including federal income tax, Social Security, and Medicare taxes. Employers also contribute to Social Security and Medicare on behalf of their employees. Employees receive a W-2 form at the end of the year to report their earnings and taxes withheld. This tax arrangement provides a level of financial stability but may result in fewer deductions and tax advantages compared to contractors.


Contractor: Independent contractors typically do not receive employee benefits such as health insurance, retirement plans, paid time off, or worker’s compensation. They are responsible for obtaining their own insurance coverage and funding their retirement. Contractors also do not have access to certain employment protections and benefits mandated by labor laws, such as minimum wage, overtime pay, and family and medical leave.

Employee: Employees are often eligible for a range of benefits, which may include health insurance, retirement plans (like 401(k)s), paid time off (vacation and sick leave), and, in some cases, various forms of insurance like worker’s compensation. They are also entitled to employment-related legal protections, such as minimum wage, overtime pay, and anti-discrimination laws.

These differences are crucial for businesses and workers to understand because they impact various aspects of the employment relationship, including tax liabilities, compensation, legal protections, and access to benefits. Misclassifying workers as either contractors or employees can have legal and financial consequences, making it essential for both employers and workers to accurately determine and adhere to their proper employment classification.

Legal Implications

Employment and Labor Laws:

Wage and Hour Laws: Employee misclassification can lead to violations of wage and hour laws, such as the Fair Labor Standards Act (FLSA) in the United States. If employees are misclassified as contractors, they may not receive minimum wage, overtime pay, or other wage-related protections to which they are entitled.

Employment Discrimination Laws: Misclassified workers may be denied protection under employment discrimination laws, leading to potential claims related to discrimination based on race, gender, age, or other protected characteristics.

Worker Safety Laws: Employees are often covered by occupational health and safety regulations. Misclassified workers may not have the same safety protections, potentially leading to workplace accidents and legal liabilities for the employer.

Worker Classification Audits:Government agencies, such as the Internal Revenue Service (IRS) and the Department of Labor (DOL), conduct audits to ensure proper worker classification. These audits can result in penalties and fines if misclassification is found. Employers may be required to pay back wages, taxes, and penalties, which can be financially crippling.

Legal Challenges and Lawsuits:Misclassified workers may file lawsuits or administrative claims against their employers. Common legal challenges include seeking back wages, overtime pay, and employee benefits. Workers may also seek damages for emotional distress or lost benefits.

How to determine worker status

The Employment Test

The Employment Test, comprising three core factors, is commonly used to assess worker status.

Personal Service: If the worker is required to provide their services personally, without the ability to send a substitute, they are more likely to be classified as an employee. Independent contractors often have the freedom to delegate their work.

Control: The level of control an employer exerts over a worker plays a crucial role. If an employer dictates how, when, and where the work is performed, it suggests an employer-employee relationship. Independent contractors have more autonomy.

Mutuality of Obligation: The presence of an ongoing mutual obligation for work and payment can indicate an employee relationship. Independent contractors usually work on a project basis and are not bound to ongoing work obligations.

IRS’s 20-factor or common law test

The IRS’s 20-Factor test, also known as the Common Law Test, involves a detailed examination of the working relationship. This test assesses factors like behavioral control (how much control the employer has over the worker’s actions), financial control (who provides tools and resources), and the type of relationship (employment contracts and benefits).

Department of Labor’s Economic Reality test

The Department of Labor (DOL) uses the Economic Reality Test to determine worker status. This test focuses on whether the worker is economically dependent on the employer. Key factors include the worker’s investment in equipment, the permanency of the working relationship, and the degree of skill required. If a worker is economically independent, they are more likely to be classified as an independent contractor.

These tests and factors serve as guidelines for classifying workers accurately. Employers should consider the specific circumstances of their working relationships and apply the appropriate test to determine whether a worker is an employee or an independent contractor. Misclassification can lead to legal and financial consequences, so a thorough understanding of these tests is essential for both businesses and workers.

Why is Employee Misclassification a risk?

Employee misclassification is a significant risk for both employers and employees due to its multifaceted consequences. This practice entails classifying workers incorrectly as independent contractors rather than employees, and the risks associated with it can be categorized as follows:

Back wages and benefits

Misclassifying employees as independent contractors can result in significant financial risks for employers. This includes potential liabilities for unpaid minimum wages, overtime, and mandated benefits. Employers may have to retroactively pay back wages and benefits, placing a substantial financial burden on them. Meanwhile, misclassified employees are at risk of being denied fair compensation and essential benefits, impacting their financial well-being.

Loss of public tax revenue

Employee misclassification can lead to a loss of public tax revenue. When workers are classified as independent contractors, they are responsible for their own taxes, and employers do not withhold taxes from their payments. This can lead to underreporting of income and, consequently, a reduction in tax revenue collected by government agencies. Tax authorities often conduct audits to identify misclassified workers, leading to penalties, back taxes, fines, and interest for employers.

Legal issues

The legal risks associated with employee misclassification are substantial. Violations of labor and employment laws can result in costly legal challenges, including wage and hour claims, employment discrimination lawsuits, and worker safety violations. Employers may face litigation, legal fees, settlements, and damage to their reputation. For employees, misclassification may result in being denied legal protections, such as protection against discrimination and unsafe working conditions. This can lead to legal action against their employers, potentially involving lengthy and adversarial legal battles.

How to avoid Employee Misclassification risk?

Avoiding employee misclassification is crucial for legal and financial well-being. Employers can take the following measures to reduce this risk:

Create thorough independent contractor agreements

Develop detailed independent contractor agreements that clearly outline the work relationship, roles, and responsibilities. These agreements should highlight the contractor’s independence, work control, and lack of employee benefits. Legal counsel can ensure alignment with employment laws.

Use EOR services

Employ an Employer of Record (EOR) service provider like NNroad, especially when expanding internationally. EOR services handle compliance with local labor laws, reducing misclassification risks, and managing payroll, benefits, and tax matters.

By teaming up with NNRoad, you guarantee seamless and effortless hiring and payroll for you and your remote employees.

NNRoad’s Employer of Record (EOR) procedure is a pay-as-you-go service that simplifies global expansion. With NNRoad as your partner, you can focus on selecting and managing candidates while we handle complex local HR administration processes. We take care of payroll, benefits, compliance, and onboarding/offboarding, ensuring legal requirements are met. Our flexible model allows you to scale your workforce without long-term commitments or excessive costs.

What are the penalties of employee and independent contractor misclassification?

Misclassifying workers can lead to various penalties affecting both employers and employees. These penalties range from financial consequences to potential legal actions:

Regulatory fines

Employers may face fines from government agencies like the IRS or DOL for not complying with employment and tax regulations. The fine’s amount depends on the extent of misclassification.

Employee benefits insurance repayments

Employers might have to reimburse insurance benefits to misclassified workers. This includes health insurance, retirement contributions, and workers’ compensation. Retroactive payments can be substantial.

Punitive damages

Employees can seek punitive damages in lawsuits as a punishment for willful misclassification. The amount varies based on the severity of the misclassification and jurisdiction.

Jail time

  • While it is rare, in extreme cases, employers who engage in fraudulent or intentional misclassification may face criminal charges and potential jail time. Criminal penalties are typically reserved for cases involving widespread fraud, tax evasion, or labor exploitation. However, it is essential to note that such cases are relatively uncommon and usually require egregious violations of the law.

Employee and independent contractor misclassification can have profound consequences for both employers and workers. Employers may experience financial strain from fines and benefit repayments, while employees may suffer from the loss of legal protections and rightful benefits. In some instances, misclassification can result in punitive damages, and in rare cases, criminal charges. To avoid these penalties, it is imperative for employers to accurately classify their workers, adhere to employment laws, and seek legal guidance when necessary. Workers, on their part, should be aware of their rights and consult legal counsel if they suspect they have been misclassified.

Are there any protections for contractors?


In Australia, independent contractors are granted certain legal protections to safeguard their rights. These protections include:

Contractor Rights: Independent contractors have the right to negotiate their contract terms, which allows them to determine payment rates and working conditions, providing a degree of autonomy.

Fair Work Act: The Fair Work Act 2009 sets minimum conditions and rights for independent contractors, including protection against unfair contract terms.

Fair Work Commission: Contractors can seek assistance from the Fair Work Commission to resolve disputes related to their contractual arrangements.

Work Health and Safety: Independent contractors are entitled to a safe work environment and can seek protections under health and safety laws, similar to employees.


In Spain, there are certain protections in place to ensure the rights and well-being of independent contractors. Key safeguards include:

Statutory Rights: Independent contractors in Spain enjoy legal protections provided by the Workers’ Statute, which establishes the rights and obligations of all workers, including independent contractors.

Social Security: Independent contractors are eligible to contribute to the Spanish Social Security system to receive health care coverage and access to social benefits.

Tax Obligations: Contractors are required to comply with tax obligations, ensuring that they have the financial protection and benefits that come with these contributions.


In the United States, independent contractors also have certain protections:

Anti-discrimination Laws: Independent contractors are protected by federal antidiscrimination laws, which prohibit discrimination based on factors such as race, gender, or disability.

Contract Enforcement: Contractors have legal rights to enforce their contracts, including seeking compensation and addressing contract breaches.

Intellectual Property Rights: Independent contractors often retain rights to their intellectual property, and these rights are protected under copyright law.

Minimum Wage Laws: While independent contractors are not covered by minimum wage laws, some states have enacted wage and hour laws that provide protections for certain contractors.

Contractual Agreements: Contracts between independent contractors and businesses can outline various protections and obligations, such as nondisclosure agreements and dispute resolution procedures.

It’s important to note that the specific protections and rights for independent contractors can vary by jurisdiction and depend on the nature of the working relationship. Independent contractors are encouraged to understand their rights and obligations under local and national laws and consult legal counsel when needed to ensure their rights are protected.

How can NNroad help you correct Employee Misclassification?

NNroad, an Employer of Record (EOR) service provider, can play a crucial role in helping businesses correct employee misclassification and maintain compliance with local employment and labor laws. Here’s how NNroad can assist in this process:

Worker Classification Assessment:

NNroad can conduct a comprehensive assessment of your existing workforce to determine whether employees have been properly classified or if there are instances of misclassification. This involves a review of employment contracts, working arrangements, and the nature of the work performed.

Legal Compliance Check:

NNroad is well-versed in the intricacies of employment laws and regulations in various countries. They can review your existing employment agreements and practices to ensure they align with local labor laws. Any discrepancies or misclassifications can be identified and rectified.

Contract Review and Revision:

If misclassification issues are detected, NNroad can assist in the review and revision of employment contracts to accurately reflect the worker’s status, whether as an employee or an independent contractor. They can ensure that the contractual terms, responsibilities, and benefits align with the chosen classification.

Back Pay and Benefits Resolution:

NNroad can help you address any back pay and benefits issues resulting from misclassification. This includes calculating and disbursing any owed wages, overtime, or benefits to employees who were misclassified as independent contractors.

Payroll and Tax Compliance:

Ensuring compliance with tax and payroll regulations is crucial. NNroad can help manage payroll processes, tax withholding, and reporting to the appropriate authorities, reducing the risks associated with misclassification.

Ongoing Support and Guidance:

NNroad provides ongoing support to businesses to maintain proper worker classification. They can assist with addressing classification concerns as your workforce evolves and local employment laws change.

Risk Mitigation:

NNroad’s expertise in navigating complex labor laws and regulations can help mitigate the risks associated with misclassification. By partnering with NNroad, businesses can reduce the chances of legal penalties and financial liabilities stemming from misclassification issues.

Global Expansion Support:

If your business is expanding internationally, NNroad’s EOR services can help ensure compliance with local employment laws and regulations in new markets. This reduces the risk of misclassification as you expand your global footprint.

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