The HR Guide To Employee Classification

Work classification is easy, right? Think again. 

Misclassifying employees is actually more prevalent than you think: 10-30% of employers misclassify at least one employee as an independent contractor, meaning millions of employees miss out on benefits, and employers have to pay hefty fines to mitigate the mistake. 

Of course, misclassification doesn’t make the IRS happy either; it loses roughly $8 billion annually in employment taxes due to this oversight. 

Because employee classification is important for all involved, we’ve developed the guide below to help you adhere to labor laws, avoid penalties, and provide the right legal protections and benefits for your people.

Understanding Employee Classification

Accurate job classification under the Fair Labor Standards Act (FLSA) ensures employees receive proper minimum wage and overtime protections.

Specifically, employee classification:

• Determines whether a worker is an employee or an independent contractor based on job duties.
• Impacts legal protections, taxes, and benefits like overtime pay. 
• Is essential for complying with labor laws and avoiding penalties. 

FLSA Guidance

FLSA regulations help employers differentiate between an employee and an independent contractor. 

If you’re stuck, the ‘economic reality test’ is a useful tool in this process, as it helps employers evaluate factors from the permanence of the role to the degree of control and the nature of the work. Through this test, businesses and workers can accurately gauge their positions within the legal framework and ensure compliance with the FLSA.

Employment Types

Each job – full-time, part-time, seasonal, temporary, contract, and statutory employees – presents unique traits and implications for job classification. 

Whether someone is working a seasonal job or is a full-time employee at a company, accurately classifying them as either an employee or an independent contractor is important and must be done carefully, especially when considering people with similar skills.

Independent Contractors vs. Employees

The critical distinction between roles isn’t just about titles; it’s about the working relationship and the economic realities that come with it. (Remember, full-time employees receive benefits that aren’t given to independent contractors, like social security and medicare taxes.)

• Independent contractors work on their own terms, choose their projects, and manage their schedules. They have the freedom to decide how to complete their tasks Independent contractors handle their own income tax and self-employment tax without the benefits that employees enjoy under FLSA. They provide their own tools and take charge of their creative or professional work.
• On the other hand, employees follow the employer’s guidelines, work within the company’s structure, and stick to set work hours. Employees receive necessary tax resources from their employers along with benefits and protections.

Exempt vs. Nonexempt Employees

Not to complicate things further, employees can also be exempt or nonexempt.

Exempt and nonexempt employees differ primarily in their eligibility for overtime pay, with exempt employees generally holding managerial or professional roles and nonexempt employees performing manual or technical tasks. Because of these differences, misclassification can lead to significant legal and financial consequences for employers.

Exempt Employees

Exempt employees are not entitled to overtime pay. To be classified as exempt, employees generally must meet three criteria:

1. Salary Basis: The employee must be paid on a salary basis, which means they receive a fixed salary regardless of the number of hours worked.
2. Salary Level: The employee must earn a salary that meets or exceeds a certain threshold, which is periodically updated by the Department of Labor. As of 2024, the minimum salary level is $684 per week (equivalent to $35,568 annually).
3. Duties Test: The employee must perform certain types of job duties. Common categories include:
   • Executive: Primary duty is managing the enterprise or a recognized department, and the employee must regularly direct the work of at least two other full-time employees.
   • Administrative: Primary duty is performing office or non-manual work related to management or general business operations, and the employee must exercise discretion and independent judgment on significant matters.
   • Professional: Primary duty requires advanced knowledge in a field of science or learning typically acquired through prolonged specialized education.

Nonexempt Employees

Nonexempt employees are entitled to overtime pay. They must receive at least one and a half times their regular rate of pay for any hours worked over 40 in a workweek. Nonexempt employees can be paid hourly or in salary, but their job duties do not qualify them for an exemption under the FLSA.

Exceptional Cases in Worker Classification

Particular attention is required for unique cases in job classification, like seasonal employees or those operating under distinctive state-specific regulations. Under the FLSA, certain seasonal workers may be exempt from the federal minimum wage and overtime regulations, provided the employer meets specific operational criteria. However, states like Massachusetts impose more stringent requirements, including shorter operational periods and mandatory certifications for seasonal exemptions.

V-class employees, a subset within the part-time category, face a unique set of rules. They are entitled to straight-time pay for hours worked beyond their appointment percentage, up to 40 hours, and premium pay for work over 40 hours a week. Such nuances highlight the importance of a tailored approach to worker classification and emphasize that employers must take both federal and local labor standards into account.

Role of Employers in Worker Classification

Employers are responsible for classifying workers accurately. To do so, they should:

• Maintain detailed records for payroll, wage computations, and timekeeping for at least three years, ensuring that any question of hours spent or wages due can be clarified.
• Regularly review job duties and salaries to ensure compliance with federal, state, and local labor laws. 
• Utilize tools like payroll and time-tracking software to streamline record-keeping and prevent misclassification issues.
• Consult experts to help with routine audits, determine classification strategies, and find solutions to unique scenarios. 

Interestingly, the FLSA does not stipulate definitions of full-time or part-time employment, granting employers the flexibility to make these designations. 

However, as of March 2024, the U.S. Department of Labor’s new rule emphasizes the multifactor test (including the degree of control exercised by the employer and the worker’s opportunity for profit or loss based on their managerial skill​) to provide more precise guidelines for employers. 

Implications of Misclassification

Misclassification, whether intentional or not, can have dire consequences.

Misclassification can lead to:

• Employees not receiving the benefits and protections they deserve under the FLSA, such as health insurance, retirement benefits, and workers’ compensation.
• Employees filing lawsuits to recover benefits and compensation rightfully due to them.
• Employers finding themselves swamped by back taxes, interest, and fines, sinking under penalties for misidentifying an employee as an independent contractor.

Luckily, the IRS’s Voluntary Classification Settlement Program (VCSP) offers a lifeline for employers to reclassify workers and resolve past misclassifications with less severe consequences.

Properly Classify to Safeguard Your Organization

As noted, it’s imperative to properly classify workers to provide them with the right benefits and ensure justice in the workplace. By following the FLSA and state laws and maintaining a vigilant watch over the classification process, employers can avoid legal issues and foster a fair and equitable environment for all workers. 

They must also remain proactive, regularly reviewing job roles and compensation to align with legal standards. By doing so, employers not only protect their business from potential penalties but also contribute to a more just and supportive workplace for all employees. Ultimately, the effort invested in proper classification pays off in the form of a more harmonious and legally compliant organization.