Employee or Independent Contractor? Congress Investigates Employee Misclassification

Lindsay Beyerstein

More than 10 million American workers are classified as independent contractors. But how many of them are really self-employed and how many are falsely labeled as such by unscrupulous employers?

That’s one of the questions the Senate Committee on Health, Education, Labor and Pensions (HELP) set out to answer in a hearing on employee misclassification last week.

Employers mislabel their employees as contractors in order to avoid paying Medicare, UI and Social Security taxes. Amazingly there are no legal consequences for misclassifying workers, even if the employer does it on purpose. Committee Chair Tom Harkin (D-Iowa) pointed out this kind of tax evasion is costing cash-strapped state unemployment insurance funds billions of dollars a year.

A 2000 study commissioned by the Department of Labor found that up to 30% of employers misclassify at least some of their employees. The practice is rampant in the construction industry and in low-wage and gray market sectors of the economy.

By breaking the law, employers can cut their labor costs by up to a third. Frank Battaglino, who owns a sheet metal company in Maryland, testified about how hard it is for law abiding employers to compete with companies who cut corners.

Increasingly we were being beat out of competitive bids by unusually low bids,” Battaglino said. We know this is a direct result of companies deliberately misclassifying their workers as independent contractors.”

Who counts as an employee? The law takes a pretty commonsense view of the question. Basically, if you work for wages with the employer’s tools at the employer’s workplace under the employer’s supervision, you’re an employee. True independent contractors are literally in business for themselves. They invest capital in their own ventures and share in the profits or losses of their enterprises.

Deputy Secretary of Labor Seth Harris told the committee about one Wisconsin family restaurant that tried to evade minimum wage laws by classifying the dishwashers in their kitchen as independent contractors.”

Most workers don’t realize that most of the rights they take for granted in the workplace derive from their legal status as employees. For example, most anti-discrimination laws are written in terms of what employers can do to their employees. Contractors may not be protected.

Help may be on the way for misclassified workers. In January of 2010, the DOL hired more inspectors to combat misclassification. The President’s 2011 budget calls for an additional $25 million to help the DOL, IRS and other agencies address the problem. Finally, Harkin and Sen. Sherrod Brown (D-OH) have introduced the Employee Misclassification Prevention Act, which would impose penalties for misclassifying employees as contractors and require employers to keep records on non-employees who work for them.

Lindsay Beyerstein is an award-winning investigative journalist and In These Times staff writer who writes the blog Duly Noted. Her stories have appeared in Newsweek, Salon, Slate, The Nation, Ms. Magazine, and other publications. Her photographs have been published in the Wall Street Journal and the New York Times’ City Room. She also blogs at The Hillman Blog (http://​www​.hill​man​foun​da​tion​.org/​h​i​l​l​m​a​nblog), a publication of the Sidney Hillman Foundation, a non-profit that honors journalism in the public interest.
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