What Every Business Owner Needs to Know About Massachusetts Independent Contractor Laws
It is common in many industries to use the services of individuals as independent contractors, or “1099 employees,” rather than putting them on payroll as W-2 employees. This is not exactly paying people “under the table,” as their income is reported on 1099 forms at the end of the year, but it is still a risky practice under Massachusetts law, and one which can cost an employer far more than the savings realized by using independent contractors.
The Law About Independent Contractors
The Massachusetts Wage Act defines an “employee” as any individual performing any services, unless the employer can prove all three of the following:
• the individual is free from control and direction of the business he or she is providing services for;
• the service is performed outside the usual course of the business of the employer; and
• the individual is customarily engaged in an independently established trade, occupation, profession or business of the same nature as that involved in the service performed.
It is important to understand that all three of these tests must be met, and if any one is lacking, the individual will be considered an employee under the law, not an independent contractor.
It is the second prong that has proven most troublesome for employers. Even if a person functions independently, and “freelances” for other companies in addition to providing services for the business, if what that person does is part of the ordinary operations of the business, the employer could be breaking the law by classifying that person as an independent contractor.
For example, if I hire someone to paint my office, or plow the parking lot, those activities are not part of the usual course of my business as a law firm. If, however, I hire someone for 10 hours a week to do legal research, even on a temporary basis, that person is performing a core function of my business, and likely should be paid as a W-2 employee, no matter how few hours he or she works, or how temporary the assignment.
Ancillary support services (IT consultants, payroll or accounting services) are generally permissible to engage on a contracted services basis, assuming the other tests are met (actual independence and provision of similar services to others), and assuming those are not your core business activities. Gray areas abound. If you operate a restaurant, it is likely that you can hire a webmaster as an independent contractor, but if you operate an online store, an argument could be made that the website is part of your usual course of business, and therefore should be managed and staffed by employees under the law.
But My Accountant Said it was Okay!
We hear this all the time. Your CPA or accountant may have told you that, under the circumstances, it was permissible to classify certain workers as independent contractors. Your accountant is not necessarily wrong- he or she is just applying a different set of rules for a different purpose.
Specifically, your accountant’s job is to make sure you are following applicable tax rules. If you are paying someone as a 1099, you are not paying the employer’s share of employment taxes, and essentially shifting that burden to your worker, who will be responsible for self-employment taxes on that income. Should the IRS decide that the individual really was an employee, it may re-assess responsibility for those taxes to the employer.
To that end, the IRS has a series of factors it considers, referred to as the “20 Factor Test.”
Unlike the Massachusetts Independent Contractor Law, there is no one deciding factor, and the IRS can place different weight on different factors according to the circumstances.
Also unlike the Massachusetts Independent Contractor Law, the 20 Factor Test recognizes things like flexibility of schedule, part time or full time status, location of employee’s work, provision of tools and materials, and contractual terms between the parties as relevant factor. None of these matter under the Massachusetts Independent Contractor Law, if the employer cannot demonstrate all three elements cited above.
Why Is It Important to Get This Right?
It is truly surprising how many businesses in Massachusetts get this wrong, so you should not assume a practice of using independent contractors instead of employees is lawful, even if it is common in your industry. Further, it is important to understand the potential consequences under Massachusetts law of incorrectly classifying workers, even if your classification passes muster under the federal tax rules.
First, a violation of the Independent Contractor Law is a violation of the Wage Act, which means that if an employee wins a lawsuit and proves damages, those damages are automatically tripled and the employer is required to pay not only its own legal costs, but the employee’s as well.
Second, the measure of damages may be greater than you think. These can include the value of benefits that W-2 employees receive, the amount of self-employment tax liability the employee has incurred by being classified as a contractor, the lost opportunity to collect unemployment benefits if terminated, and any overtime pay that person would have been entitled to as a W-2 employee.
By way of example, imagine an independent contractor earning $50,000 per year in a company where W-2 employees receive two weeks of vacation per year, paid federal holidays, and an employer contribution to health insurance of $500 per month. In this scenario, the contractor is terminated and unable to find another job for three months. The damages that individual might claim are:
• $1923 for the two-week vacation benefit s/he did not receive
• $1923 for the ten paid federal holidays s/he did not receive
• $3500 for the 7% self-employment tax s/he incurred liability for
• $7,200 for the three months of unemployment (at the maximum benefit rate) that s/he was ineligible for due to the classification as an independent contractor.
Even assuming this person never worked overtime (which could add substantially to the damages), there could already be a claim for almost $15,000 in single damages, which if proven would then be tripled by the court.
Then Why Do So Many Businesses Get This Wrong?
One reason is the confusion described above between the federal tax rules and the Massachusetts wage and hour rules. Many businesses rely on their accountants in the first instance to “vet” these decisions. This is entirely appropriate as it relates to taxes, but the employment law analysis is a different animal.
Another reason is that violation of the Independent Contractor law is so common that people assume it is acceptable because so many others are doing it.
Finally, in our experience many business owners are simply not doing the math correctly, and assume that putting employees into W-2 status is more expensive and burdensome than it really is. Yes, you do have to assume the employer’s share of payroll taxes (7%), pay into unemployment, and take out workers compensation insurance. At the present time, you are not obligated to provide health benefits unless you have 50 or more employees, which exempts all or most of the businesses we encounter.
Whatever the costs, it is important to compare them to the costs of answering a misclassified employee’s civil lawsuit, including the costs of your own legal representation.Contact
Have more questions? Contact our team at slnlaw LLC for more information on independent contractor classifications in Massachusetts and what it means for your business.
There are some moments in life it’s impossible to prepare for on an emotional level. But when it comes to your finances, it is possible to be proactive. An estate planning lawyer can help. Estate planning can help you at all times in your adult life, but you will see the greatest benefit the earlier you begin. Here are five key milestones where estate planning is essential:
1. When You Get Married
Before marriage, you probably only had yourself to think about. Now, you have a partner who may rely on you in some way for support. Even if you don’t provide for their quality of life, you likely would prefer that they receive your belongings, such as your home, car and valuables…or would you?
After you’re married, if you don’t want certain belongings to pass to a spouse if you die, you will need a will to clearly state your wishes. Do you want your parents to receive some of your assets? Now is the time to talk it out with your new spouse and your estate planner.
There are additional ways an estate planner can help when you’re a newlywed. You can set up power of attorney for each spouse as well as fill out healthcare proxy forms. Make sure you can each make financial and medical decisions for the other in the event of an accident or injury – you’ll be thankful you did if you ever find yourself in a critical situation.
2. When You Have a Child
Is there anything more life-changing than welcoming a child into the world? Now you truly do have another human being depending on you for support, and estate planning helps you make sure you do just that.
Who will care for your children if you die? How will your assets be distributed among your children? Comprehensive estate planning includes detailing your wishes, setting up a trust and planning ahead so your family receives as much support as possible in the event of your death.
3. If You Get Divorced
No one goes into marriage with the intention of divorce, but sadly, it’s a reality. Divorce brings a whole range of estate planning questions. Have you changed the name of your account beneficiaries? Would you like to change your healthcare proxy and power of attorney? Should you rename your will executor?
After divorce, you may wish to marry a second time. Again, an estate planning lawyer can help with key issues at this stage. What should a second spouse receive if you die? How will children of a second marriage be provided for? Answer these questions now and save your family hours in probate court and thousands of dollars in lawyer fees.
4. When a Parent Dies
When your parents reach the end of their life, there is a high likelihood that you will be called upon to take over their finances and make their medical decisions. If you and your parents don’t talk about estate planning before they become ill or pass away, it can be very difficult for you to access their accounts and provide the support they need.
What is the correct role for adult children and what are your parent’s wishes? Meeting with an estate planner with your parent beforehand can help you prevent trouble with banks and avoid contention within families.
5. When a Spouse Dies
If you or your spouse were to pass on, are you prepared for all of the imminent financial decisions that will result? Working with an estate planner ensures either you or your spouse has a strategy to deal with estate tax and bypass probate.
Why Work with Us
Slnlaw LLC is a full-service estate planning firm that also offers individual services. In other words, we will design a service package that fits your specific needs. We understand no two people are alike, but everyone needs a detailed, knowledgeable estate planning lawyer to navigate the often confusing laws and regulations. Let us help – call today to set up a consultation.
What You Need to Know About Massachusetts Estate Tax
Everyone has an estate. It may not look like a sprawling mansion in the countryside, complete with a butler and a carriage driver, but in the eyes of Massachusetts law, if you have any assets to your name (even just a bank account), you have an estate.
It’s highly likely that your estate makes you richer than you think, and here’s why: your estate is more than just your home and your current bank account balance. It includes life insurance, annuities, business interests, retirement accounts and more.
This is why you should consider estate planning: lowering the tax burden on your estate could help your family save tens of thousands in taxes, significantly adding to the inheritance of your loved ones. And whether you realize it or not, your assets likely add up to more than $1 million, which is when Massachusetts estate tax will begin to affect you.
The $1 Million Threshold
If your assets equal more than $1 million, you will owe Massachusetts estate tax when you die. And you won’t just owe taxes on the amount above $1 million – you’ll pay taxes on all of your assets over $40,000.
Massachusetts has graduated tax rates that range from 0.08% to 16%. You’ll pay about $36,500 in taxes on an estate just over $1 million, but you could pay nothing if you were able to keep your total estate at $1 million or less.
Are you close to the taxable threshold?
If you have a $400,000 life insurance policy, stock holdings, an average 401(k) retirement and you own a home, chances are, you’re definitely close. It’s worth it to explore the tax saving benefits you could employ with conscientious estate planning. You may not think of yourself as “rich,” but Massachusetts will take its share upon your death unless you structure your assets in a way to benefit your heirs the most.
Giving Is a Great Solution
What’s a great way to reduce estate tax burden in Massachusetts? Give it away.
If you plan on leaving money to your children after your death, and you know your estate is over the $1 million Massachusetts exemption amount, why not begin to impart financial gifts now? You will get to see the benefits your money can provide to your heirs and you will actively reduce the amount they would have to pay in taxes after your death.
Giving is a sensible way to expedite the inheritance process without having to pay estate taxes, but state and federal laws have been established to put a limit on your ability to exercise this option.
In Massachusetts, any gifts in excess of $14,000 per year per receiver that were gifted after December 31, 1976 will reduce dollar for dollar the amount of assets you can have in your estate before incurring estate tax. You can give away up to $14,000 per year, per receiver without paying a federal gift tax, but if you die within three years of any size gift, even one within the $14,000 limit, it will remain part of your estate for tax purposes.
Married couples can give away $28,000 per year to their heirs. They could conceivably gift $28,000 per year to each of their three children and reduce the value of their gross estate by $252,000 over the course of three years, without having to reduce their allowed exemption amount (the $1 million per person described in the section above.)
What Else Can You Do to Reduce Your Tax Burden?
There are many additional estate planning strategies we recommend at slnlaw. From opening a credit shelter trust to establishing a Family Limited Partnership, you have options and we have explanations.
Find out if you’re close to the $1 million threshold – schedule a free consultation with our estate planning team to figure out what you’ll owe and how to lower (or erase) your projected Massachusetts estate tax bill.
Even though it’s not a topic you like to think about on a day-to-day basis, you know you need to prepare for your family’s life after your death.
A will is one of the most common estate planning documents, but surprisingly, this legal document probably doesn’t suffice and won’t guarantee your wishes are carried out. If you’re relying on a will as your sole estate planning document, you could be leaving your family unprotected. While writing a will is a great start, it isn’t comprehensive enough to account for all of the complexities of your finances and your life.
Here are the top five reasons you need more than a will when it comes to planning your estate:
1. A will is just a suggestion of your wishes and must be validated by a judge through a process known as probate.
Probate is public, lengthy, expensive, and leaves your will and wishes open to contestation by parties who think they should be included. The more assets that pass automatically to your heirs outside of the probate process the better. Probate could prevent your family from gaining possession of your assets for months following your death, when they may have immediate needs.
2. A will is often inflexible.
Once a will is written and signed, it is set. It can only be revoked by destroying the original document, leaving you without a will, or going through the entire will drafting process again and signing a new will.
At your death, a valid will, once probated, is set. There can be no changes. A will drafted 15 years ago does not have the flexibility to deal with the unexpected.
On the other hand, while a trust is also indelible, a trust has an appointed trustee. This living person who you trust to follow your wishes is also able to react and deal with the unexpected more appropriately and with more finesse than an aged document that is unable to contemplate every potential circumstance.
3. A will alone won’t fully protect your estate from taxes.
Alone, a will is unable to shield your assets from federal and state taxes, which can significantly reduce the total left to your descendants. Alternatively, a trust offers many tax relief benefits, allowing you to plan for and avoid hefty tax scenarios.
4. A will is limited to property that does not already pass automatically to beneficiaries.
Simply because you choose to distribute your property equally to your three children, does not mean that all your property will go to your three children. Only property passing under your will and included in your estate will go to your children. Other assets, such as retirement plans, life insurance proceeds, and certain property held jointly, pass automatically to whoever is named as the beneficiary. Your will cannot override deeds or beneficiary designations.
5. A will names who will take care of your minor children, but is limited in describing how your children should be raised.
A will can name a conservator and guardian for your children, but the details of how you want your children raised, such as education and religion, are not topics people typically feel comfortable including in a public document.
A will is just a note with your basic wishes expressed. But a comprehensive legal document like a trust has the power to do more than state your expectations. You can delay monetary distributions until your children are old enough to handle such distributions. You can provide more direction for your chosen guardian. You can also protect your children from misuse of trust funds.
Protect Your Family
Estate planning may not be as straightforward as drafting a simple will, but an experienced estate planning lawyer can help you find peace of mind. Get the confidence that comes with knowing your loved ones are protected – contact slnlaw today for a free estate planning consultation.