If you haven’t already incorporated a trust into your current estate plan, consider doing so as soon as possible.
Trusts are powerful tools when it comes to protecting your wealth and financial legacy for designated loved ones. But what does a trust do, exactly? A trust’s basic purpose is to allow an assigned third party to hold an estate’s assets for a beneficiary. Here’s how this arrangement can ultimately benefit both you and your successors in the long run.
Trusts Help You Avoid Probate
A trust that is made by a grantor while he or she is still alive, which is referred to as a “living trust,” can help prevent the assets from going through probate court after the grantor’s death.
Probate, the process of determining a will’s validity, can be an extremely long, public and expensive process. Bypassing it will help protect your family’s privacy and funds.
Trusts Play a Role in Estate Tax Reduction
For example, if you choose to create an irrevocable life insurance trust, you can prevent any property inside the trust from being taxed after you pass away. Here’s what you can expect:
When you transfer assets into an irrevocable trust — a trust that cannot be modified or revoked — you are removing the added value the assets bring from your estate. Therefore, you no longer own these assets. This means that they are permanently given to the designated trustee and beneficiaries. After you pass away, they will not be subject to any estate taxes.
While the same rules do not apply to revocable trusts, because, you still own the assets that you place into a revocable trust, revocable trusts are extremely useful and help minimize any potential taxes by classifying assets under specific exemptions allowing a predetermined amount of assets to pass tax-free..
They Protect Assets from Creditors and Lawsuits
The idea of losing a significant portion of your money from a lawsuit or surrendering it to creditors can be alarming. Thankfully, irrevocable trusts also provide trusted asset protection.
After a grantor gives up ownership and access to his trusts, they can no longer be reached by creditors. Why? For the same reason that trusts are able to reduce estate taxes. The grantor no longer owns the assets. Spousal lifetime access trusts and domestic asset protection trusts are often used for this purpose.
If you think opening a trust is right for your estate plan, then it’s time to talk with the professionals at SLN Law. Our estate plan and trust experts will help you choose the right trust option that will provide the greatest benefit to both you and your family. Contact us today!
Changes to the overtime rules that were supposed to go into effect in December 2016 are now modified and finalized and scheduled to go into effect January 1, 2020. According to the Department of Labor, 1.3 million workers across the country will become newly eligible for overtime premium pay when the rule takes effect.
If you own or manage a small business in Massachusetts, these changes will almost certainly affect you, so it is important to understand the new rules.
The Cost of Getting Overtime Pay Wrong
If an employee files a lawsuit claiming they should have been paid time and a half for overtime hours and wins, you could be liable for t two or three times the unpaid amounts, as well as both your legal fees and your employee's attorneys' fees. This can literally transform saving $500 in overtime pay into a five figure expense for your business. So it is important that you understand the rules- old and new- and how they could affect you and your business.
Under the old rules, employees were exempt from overtime if they (i) were paid on a salary basis (the same amount each week or biweekly pay period); (ii) earned at least $455 per week, or a little over $23,000 per year; and (iii) performed duties considered “exempt” under overtime law (more on exempt duties further down).
The “salary basis” and “exempt duties” requirement has not changed, but the minimum earnings to be exempt from overtime have gone from $455 per week ($23,660 annually) to $684 per week ($35,568 annually). This means any employee who does not make at least $684 per week is not exempt from overtime, without regard to any of the other requirements.
The second change allows an employer to bring employees up to the minimum salary through the use of non-discretionary bonuses and incentive payments, so long as those payments do not represent more than 10% of the employee’s salary.
Why The New Overtime Rules Are Important
Prior to the implementation of the new rule, virtually every employee in Massachusetts met the salary minimum to be considered exempt from overtime, as $455 per week for a 40 hour week is less than $12 per hour, the current minimum wage in Massachusetts. The new minimum is the equivalent of a little over $17 per hour, so there should be plenty of workers in Massachusetts who right now earn enough to be exempt from overtime but will not by January 1, 2020. This means for anyone earning less than the minimum amount, they will have to be paid overtime for hours worked over 40 in a week no matter what their salary arrangement and no matter what kind of job they do for your company.
Why The Old Rules Still Matter
The minimum salary is only a piece of the analysis. What has not changed are the old rules that also require the employee to receive regular, consistent amounts, and to be engaged in duties that are considered exempt. This means that even if your employees are salaried, they may or may not be exempt from overtime.
The list of specific exemptions under Department of Labor regulations is lengthy, but in broad strokes someone is exempt (meaning they do not have to be paid premium rates for overtime) if they are a licensed professional (think lawyer, doctor, CPA, some nurses and some social workers), executive (supervising and managing at least two employees) or administrative (someone who supports the business in a role like HR and exercises independent judgment on matters of significance). If you are in doubt about your employees’ duties and whether they are exempt, it is important to consult a lawyer because the lines are not always clear between “exempt” and “non-exempt” duties.
What Small Business Owners Can Do
First, look at all of the people who work for you who at times put in more than 40 hours a week. If their regular salary is less than $684 per week, without doing any further overtime analysis, you already know that you will have to either increase their base salary (or catch them up with non-discretionary bonuses or incentive pay), find a way to control whether and when they are working more than 40 hours a week, or resign yourself to paying time and a half for hours worked over 40.
You can control hours, by having and enforcing a policy that requires management approval to work more than 40 hours, and by implementing time reporting that allows you to monitor the time put in by your employees. You may occasionally have to pay out overtime if something slips through the cracks, but you can avoid having potentially owed amounts add up over a long period of time.
You can use one time payments to bring people up to the required minimum salary. Because this rule is so new, there is little guidance on how it will be interpreted, but typically a “non-discretionary bonus” is something that is tied to an objective metric- commissions, or specific amounts paid out when a person, team or department meets certain milestones in the business.
Even before the rules changed, overtime laws were often confusing for employers, especially small business owners without a full HR department or in-house counsel. We can help- give us a call at (781) 784-2322 for a free, no obligation consultation to help you understand if you need to make any changes to your employment policies before the new year.
You’re probably familiar with the adage about the only two certainties in life being death and taxes. While the taxes are their own can of worms, death is the inevitable end that all must be prepared for. This is especially the case for adults who hold specific wishes for how their estate is split up or how their children are raised in the case of their (the parents’) untimely passing.
With a will, these matters of property and childcare can be easily addressed by your will’s designated Personal Representative. Without a will, however, you will be considered as passing “intestate,” a legal term meaning “dying without a will.” Without a will, your assets will be distributed by default according to your state’s guidelines for inheritance. This process can create a great deal of difficulty for your next-of-kin, so consider the following impacts before you go even one more day without a will:
With a will in place, you are able to choose precisely how your estate, which includes all your assets such as your house, car, bank accounts, jewelry, etc., are distributed. It also dictates who receives which assets and at what time. In the absence of a will, however, Massachusetts law will govern the process of distributing your estate through their statutorily mandated intestacy laws.
This means that the law will determine who are your heirs, the people who receive your assets, and how much they each will receive. Generally speaking, if you are married with children (and all of your children are also the children of your spouse), all of your assets will go to your spouse, with no separate provision for your children. This leaves you no way to guarantee that anything will ultimately go to your children (for example, imagine your spouse remarries and has other children). In other family situations, assets will generally be divided between your spouse and children, in proportions that may not match what you want. Otherwise, the state will begin distributing assets to other direct family members, such as siblings.
Unclear Guardianship for Minor Children
The overwhelming concern that most parents have in estate planning is the care of their children in their absence. Without a will, your children’s guardians and conservators will be chosen much in the same way as your unresolved physical assets. That is, the judge, overseeing the probate of your estate, will choose who will care for your children according to a predetermined schedule of who is given priority. Without your choice memorialized in a will, the judge’s decision may be against your wishes.
Surviving spouses and ex-spouses (if they are the child’s biological parent) continue to have parental rights. If the other parent is also deceased or incapacitated, the deceased individual’s siblings may have an opportunity, followed by any further direct relatives. In any case, this process is extremely cumbersome and emotionally draining on all involved. It can be avoided, however, through the use of a well-drafted will.
Increased Cost for Your Family
Simply put, the process of probating an estate takes longer if things aren't clearly spelled out in a will. This means whoever your family hires to manage the process will have to spend more time, meaning the fees that come out of what would otherwise go to your loved ones are higher. The cost can be even further increased if there is conflict among the surviving family about assets or guardianship.
The Bottom Line
All in all, an intestate estate is not desirable given its unpredictability and its inability to legally codify your last wishes. Even if the intestate laws of your state are aligned with your wishes, laws change, your family situation may change. Choosing who cares for your children is not best left to chance. As such, the creation of a will should be a top priority for all adults, regardless of their parental or property ownership status. When you’re ready to create or update your will, contact SLN Law’s estate planning experts to learn more about what a well-drafted will should include.
Should Millennials Create Estate Plans?
As millennials – those born between the early 1980s and mid-1990s – move through adulthood, many question whether estate planning is a worthwhile venture for their needs and their lifestyles. For others, estate planning simply isn’t on their radar.
To put matters succinctly – yes, creating an estate plan remains a worthwhile method for millennials to protect their most important assets both now and in the future.
Here’s why millennials should consider making an estate plan while they’re still in their 20s and 30s.
Reason #1 – Protecting an Unmarried Partner
For a variety worthwhile personal and social reasons, a large portion of millennials have chosen to forgo or delay formal marriage. Even so, many still live in committed relationships that they wish to see respected in the case of an untimely injury or death. An estate plan is an excellent method for locking down critical protections for partners not automatically covered through marital bonds.
In many cases, an estate plan can help an individual establish a partner in a key legal role, such as providing them with power of attorney or ensure their partner receives support as a designated beneficiary. Both cases are crucial to ensuring an individual’s wishes are respected with regards to the law and their partner.
Reason #2 – Provide for Charitable Causes
Perhaps more than any previous generation, millennials have been driven to service and social engagement with prosperous effects. Though many have remained socially engaged well into adulthood, few ever consider how they can perpetuate their service even after their passing. Just as in previous generations, charitable giving remains a prime method for accomplishing this goal.
Either as a bequest in a will or by way of a trust, many millennials should consider charitable causes as a worthwhile reason to create an estate plan. Doing so can help solidify a positive social impact to a worthy organization for many decades to come — even after you pass away.
Reason #3 – Addressing Digital Assets
As digital natives, many millennials have grown up holding valuable digital assets, both personal and business-related. Modern estate plans are one of the best ways to solidify the distribution of these digital assets, especially in categories where current laws lag behind evolving digital realities.
Empowering your Personal Representative to access and manage these digital assets immediately, protects the asset’s value, and makes sure they are properly managed and not lost.
The Bottom Line
In the end, millennials have plenty of viable reasons to establish an estate plan as soon as possible. When it comes to protecting your assets and wishes, only a well-crafted estate plan can provide full assurance in case of an untimely incapacitation or passing.
Individuals interested in drawing up an estate plan should contact SLNLaw today. Our estate planning services are designed to meet the diverse needs of our clients — regardless of age!
Online wills have come into vogue in recent years, with many advertising themselves as a speedy, affordable option when compared to traditional legal consultation. While these options are both convenient and cheap, they also come with a considerable amount of risk.
If the following three risks sound concerning to you, you should seriously consider creating a new, reliable will with the estate planning team at SLN Law.
Risk #1: Unintended Consequences
Online service providers usually offer Wills for all fifty states. However, laws vary from state to state. A Will that is legal in Florida may not necessarily work in Massachusetts and vice versa.
Simply put, you cannot (and should not) trust a faceless online service provider simply because they are claiming that they’ve found a way to simplify the complex process of creating a will. Before they become effective, all Wills must be found valid by the Probate Court in your state. Should your will not be accepted as valid, the court will treat you has having passed without a Will, and your estate will be subject to the intestate laws of that State, regardless of the instructions you wrote in your Will. The last thing you want is for your Will to be found invalid. Not only will your assets be distributed contrary to your wishes, but the added court costs and legal fees to straighten everything out can significantly reduce the amount left for your family.
Risk #2: Lack of Individuality
Traditional lawyers have always excelled in providing their clients with individualized legal solutions to meet their unique situations. Online wills, on the other hand, are one-size-fits-all solutions to a very important legal document. You simply cannot count on an online will to provide you with the specialized coverage your unique circumstances require.
You know your family best, and you know how different each one of your children are. Some are good with money, others need more oversight. Some are super organized, others have the best intentions but are always a bit scattered. Do you want your family vacation home to be available for the whole family for generations to come? Do you want your pets cared for in a specific way? Do you need to provide for a disabled child while ensuring their governmental benefits aren’t put in jeopardy? Online Wills either fail to provide for these circumstances or cause large legal and court fees to have your wishes followed.
Lawyers are people and stand behind their work and want to serve you for years to come. You cannot count on an online service provider to be available in the future when you need them to answer your important questions. In fact, there’s no promise that these online will services will even provide you with the requisite service before they skip town with your money. In so many words, using an online will creation service opens you to a considerable risk for loss of assets and family turmoil in the future.
Risk #3: Difficult to Modify
A will is, to some extent, a living document that should not be filed away as soon as it is made. Indeed, a will should be modified any time a core aspect of its considerations – from assets to marital status – changes in nature. Traditional lawyers make this process easy through follow-up consultations while online wills simply do not provide any opportunity to make changes after the fact.
Many changes can be made quickly and without any hassle, but they must compliment your original will and not invalidate it. A change to your Will, known as a Codicil, must also be witnessed and notarized properly for it to be effective. Simply drafting multiple new wills through an online service whenever you want a change causes confusion as to which is the correct will and increase the chance that your Will will not be validated by the court.
The Bottom Line
Simply put, the risks of relying on an online will are substantial enough, such that you should give any prospective online will service a hard look before investing your time and money.
Even though these online options add some convenience, the best option for will creation and estate planning in general remains through a traditional legal team, such as the experts at SLN Law. These professionals can provide you with individualized legal assistance that won’t leave you exposed to expensive court and legal fees down the line.
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Estate planning can be a challenging process, no matter how many or how few assets you possess. A well-drafted estate plan should provide for all contingencies and should clearly represent your wishes on how your assets should be managed and distributed among your family.
Unfortunately, there are a fair number of mistakes many people make while creating and maintaining their estate plans. The following estate planning mistakes are entirely avoidable, but only if you make the effort to keep your documentation up to date in terms of reflecting your current wishes.
Mistake #1: Failure to Update Beneficiary Forms
Many people don’t regularly update their estate plans, which can have unintended and serious consequences. In many ways, an estate plan is a “living” group of documents that aren’t static, but reflect your family’s changing circumstances. In order to best represent your contemporary interests in passing on your assets to your family, an estate plan’s beneficiary forms must be updated regularly. This allows your Personal Representative to distribute your assets swiftly and accurately, without additional confusion and excess court fees.
Major life events can precipitate the need to update beneficiary forms. A divorce is a prime example. An ex-spouse must be explicitly removed as a beneficiary from life insurance policies and the like, or else they will receive those assets, regardless of what you have put in your Will. The same goes for children born after your documents were initially created. Updating your beneficiary forms allows the proper beneficiaries to take control of certain assets without further legal hurdles.
Mistake #2: Outdated Tax Considerations
Estate taxes tend to change only marginally from year to year. But over the course of decades, your tax considerations may change substantially, requiring you to update your plans. For those with estate plans today, this need is particularly acute after recent changes made to the estate tax code made by the 2017 Tax Cuts and Jobs Act.
Without ensuring that new laws do not negatively affect your estate plan, a considerable portion of your assets may be paid away in taxes before a cent ever reaches your family. As such, this type of updating is crucial to their future financial security.
Mistake #3: Not Coordinating Wills and Trusts
Estate planning experts often see conflicting language between wills, trusts, and other documents. This can cause a great deal of legal confusion that can cost thousands of dollars and take several years to unwind.
Even if your will says one thing, you must remember that conflicting language in an estate plan can negate your wishes entirely. Also, failure to coordinate these important documents can result in extra taxation caused by inefficient asset inheritance.
Mistake #4: Trying to Do It Alone
Perhaps the biggest mistake an individual can make is trying to draw up an estate plan on their own. An estate plan is a complicated group of documents full of complex legal language that requires an expert to properly interpret. As such, you should always turn to estate planning experts like the team at SLN Law.
Their knowledgeable team members can help you to not only start an estate plan, but also keep an existing plan updated. Together with SLN Law, you can avoid these troublesome pitfalls and gain peace of mind when it comes to the future of your key assets.
Updating estate plans during and after a divorce is often the last thing someone feels like dealing with. However, it’s a vital step in the process. It will provide peace of mind and closure.
If you delay or avoid updating your plan, your assets could end up being distributed to your ex-spouse after you pass away. These steps will ensure your estate plan is updated and reflects your wishes.
Update Your Will
Laws vary by state, but in many cases, the information in the will still stands as valid after divorce, so it’s important to create a new will. After all, would you want your ex-spouse to inherit something from your estate?
Most planning processes start with revoking your current will. Assuming your ex-spouse was listed as executor, update the will with new details:
If you named your ex as durable power of attorney, this means you gave them access to all of your accounts and assets — including present-day assets in your name.
If you’re not sure how you named them, check with your estate planning lawyer and they’ll help you figure it out. Regardless, you’ll still want to change power of attorney by:
Update Healthcare Proxy
In most marriages, the spouse can make healthcare decisions in case of an accident, emergency or serious illness as power of attorney or healthcare proxy. For example, if you get in a car accident and sustain serious injuries and are sent to the hospital, unable to make decisions or communicate, the spouse would have authority to make decisions on your behalf.
During or immediately after a divorce, it’s imperative that you name a new proxy — someone who you trust and respect.
Name New Guardian for Minors
If you’re a parent of a child under age 18, you’ll likely want to name a new guardian in the event that you or your ex-spouse pass away or are unfit to raise the child.
Note: If you don’t want your ex-spouse to raise your children if you pass away simply for personal reasons, this can’t be prevented. Then it’s a matter of custody, which is a different topic. However, naming a guardian can provide peace of mind in the event neither you or your spouse can raise the child.
Are you in the midst of a divorce or dealing with the aftermath? The SLN Law team is here to help you update your estate plan. Contact us today!
Confronting one’s mortality is rarely easy, but with the right guidance, estate planning does not have to be a difficult process. Don’t ignore the important function it serves when it comes to providing financial and emotional security for your family. Making estate plans shouldn’t be put off, but there are a variety of reasons why folks tend delay creating their own plans in a timely fashion.
If you see yourself in any of these categories, rest assured that there are trained estate planning experts who can help guide you through this very important legal process.
Reason #1: Intimidation
Nearly every adult feels some intimidation towards the estate planning process and in many ways, those feelings are justified. Mortality itself is intimidating and estate planning requires an individual to confront it. However, making an estate plan is an important step in adulthood that represents a commitment to one’s family regarding how you will care for them if you are personally unable to do so.
Many people are intimidated by the overwhelming amount of paperwork and choices that may be necessary to complete an estate plan. The good news is that most estate planning experts use a specialized questionnaire to streamline and simplify the process. These questionnaires lead you through the process step by step and allow your estate planner to do the heavy lifting for you.
While the ball is in your court when it comes to picking an Executor or Healthcare Agent, that decision is better made well before its implementation is necessary.
Reason #2: Too Young
Many adults feel that they are too young to be filling out such keystone documents such as a Will or Power of Attorney. The truth is, every adult with any assets or liabilities should have an estate plan drawn up, in case unforeseen circumstances require their implementation. Health complications can arise even in healthy young people, so it’s never too early to have these plans in place.
This necessity is doubled for adults with children. While many new parents can get caught up in the hustle and bustle of raising children, they should take time soon after having their first child to draw up an estate plan designed specifically to ensure their child is properly cared for with guardians and careers of the parents’ choosing and not someone appointed by a judge.
Reason #3: “It’s Only for The Wealthy”
While the estate planning conjures up images of an expansive home on a massive plot of land, an estate plan is applicable to adults in every economic class. If you have any type of noteworthy assets – even an asset with only strong sentimental value – then you have enough physical wealth to necessitate the implementation of an estate plan.
In short, if you have something worth protecting and passing on, then you have all the reason you could need for an estate plan.
Reason #4: Unsure Who to Contact
Finding the right attorney to draw up your estate plan can be a challenge, especially when it comes to cost versus benefits. That’s where the team at SLN Law comes in. Their team of trained estate planning experts will help you make and fulfill important estate planning goals, ensuring that every legal safeguard is implemented to protect your assets and ensure they are delivered safely into your family’s hands.
HOW TO TALK ABOUT YOUR ESTATE PLAN WITH FAMILY
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It’s a subject few people want to discuss and yet it’s extremely important and beneficial: talking about your estate plan with your family before something happens. Have you ever known someone who has torn the house apart looking for a will when a loved one passes because they didn't know if the deceased had written a will, what it said, or even where it was? Or a family who suffers from division, hurt feelings, and stress because what was in a parent's will was a surprise? It happens more often than you might think.
If you have this “talk” approaching and you’re concerned about the situation growing tense or uncomfortable, keep these thoughts in mind:
What else can be done to make the experience more comfortable and helpful to you and your family?
Acknowledge the Inevitable
The topic is understandably sensitive, and some might imagine it to be emotional and uncomfortable. You and your loved ones obviously don’t want to think about you passing away. Plus, people often feel awkward talking about money – even among family members.
However, estate plans are created for the benefit and well-being of the people you love and who love you back.
Discussing the estate plan prepares everyone involved for what’s to come. Sitting down with beneficiaries provides a clear understanding of how they’ll be impacted by your will and other estate plan decisions. It also helps if everyone knows who your personal representative is, so they know who to go to with questions and so that person knows that he or she has been given this responsibility.
Share the Information Your Family Will Need to Manage
The question often arises, “Who should I share my estate plan details with? When? And how?”
People also often wonder whether they should meet with each heir one-on-one, or bring every heir into the room.
Whether you meet privately or as a group, consider being as transparent as possible, by sharing clear legacy information and details while keeping the door open for questions and honest conversation.
Why? Because, for example, if one of your adult children assumes you plan on leaving the family business to them, or another is expecting to inherit the family home, it only seems fair to discuss your plans with them, especially if their assumptions are incorrect, so that they can be better prepared for their inheritance when it comes. Or you may have specific reasons for naming one of your children as personal representative instead of the other- better to talk about it now than have hurt feelings or misunderstanding after you are gone, while your children are already in a stressful and sad situation.
There are also plenty of other things that are likely not controversial, but important for your family to know ahead of time. Remember that if something happens to you- either death or a sudden illness or accident that leaves you unable to communicate or make decisions for any period of time- your family will already be under tremendous stress and grief, and you should try to make it as easy for them as you can. These include:
You may also want to have a separate conversation with the individuals designated as your personal representative, health care proxy, and durable power of attorney. Massachusetts does not recognize specific advance health care directives as legally binding- instead, you designate a person you trust to make the decision for you. If you have strong opinions about what kind of medical care you do and do not want, it is helpful to make sure the person you have designated as your health care proxy knows what those wishes and opinions are. In the same way, you could benefit from making sure the person who holds your power of attorney understands how you would like certain things to be handled if you are incapacitated.
Keep Your Focus on Family
Once you focus on the relationship between you and your family members, it’s often easier to keep sight on what’s most important — family! — while leading the discussion.
To encourage the spirit of positivity and goodwill among heirs, determine how your decisions will impact everyone individually. Be empathetic and compassionate by looking at your decision from multiple perspectives.
For example, if you leave one granddaughter a trust but leave another grandchild her full inheritance, your family will naturally wonder why. Often, decisions are extremely practical and beneficial, but it’s not always interpreted as intended.
You probably also have stories to relate that can help your family think about this issue. For example, you may have a specific experience- positive or negative- with how your own parents or grandparents set up their estate plan, and how that impacted you when they passed. Show your family that you know this is part of life, that you have been through it too, and that you are trying to make things as easy as possible for them when the inevitable occurs, hopefully a long way in the future.
Talking with your family about your estate plan isn’t always clear cut or easy, but it’s a vital step in your wealth legacy journey. Want to know more about estate planning? Click here to get your free book, "What You Need to Know About Estate Planning."
WHAT’S THE DIFFERENCE BETWEEN INDEPENDENT CONTRACTORS AND W-2 EMPLOYEES?
It’s important for employers to know the difference between independent contractors and W-2 employees for legal reasons. Sometimes differentiating between the two is frustrating and confusing, especially for an employer, but it’s a necessary employment step.
Independent contractors and employees can be paid for the same or similar work, but it’s vital to know the legal differences between them. You need to know this because if you are the independent contractor, you may be missing out on important benefits and legal protections because of your classification. If you are the employer, you could be at risk for a lawsuit or enforcement action by the Attorney General if you get the classification wrong.
Below are some ways to determine if someone is an employee or an independent contractor.
When is an Employee Not an Employee, or a Contractor Not a Contractor?
The definition of an employee isn’t exactly straightforward, so it’s important for you to consult an employment lawyer if you have concerns or feel confused. Employees must receive Form W-2, which shows gross amounts paid and amounts withheld for taxes.
When it comes to employees, your company should withhold the following from wages:
According to Massachusetts Independent Contractor Law, you must consider an individual performing any services to be an employee unless the employer can prove all three of the following:
It is not enough to meet one or two of these tests- all three things must be true for you to lawfully pay someone as an independent contractor. This means that if the service someone are providing is within the usual course of business of their employer (for example, you are providing painting services for a painting company, or writing ad copy for a marketing agency, or delivering food for a take out restaurant), that person should not be classified as an independent contractor even if they meet the other two prongs.
Similarly, if the service they are providing is not something the employer usually does (for example, you are providing painting services for a law office, or web design services for a restaurant), if the work is subject to significant control or direction, or if the contractor is not free to offer those services to others at the same time they are performing them for the business in question, the law might consider them an employee rather than an independent contractor.
What Does It Mean if You Are an Independent Contractor?
An independent contractor is someone who provides services to a business but isn’t paid as an employee. At the beginning of each year, they’re given an IRS Form 1099 strictly showing amounts paid (This is why contractors are often called 1099 employees).
Under Massachusetts employment law, the following applies to contractors:
Does It Even Matter?
Aside from the obvious — it being the law — differentiating between W-2 and 1099 income is important. Even though logistics are complicated, they can often be beneficial because, for example, if you’re really an employee but are inaccurately filed as a contractor, you are missing out on some of the benefits of being an employee and may find yourself unable to collect unemployment benefits if you’re laid off or fired.
If you are an employer and have independent contractors working for you who really should be W-2 employees, you are at risk for a lawsuit under the Massachusetts Wage Act, which can get very expensive for the employer. If someone is misclassified as an independent contractor and wins a lawsuit for damages, the employer will have to pay three times the damages proven (for example, unpaid overtime, missed unemployment benefits, amounts paid by the employee in self-employment tax), and will also be responsible for the employee's legal fees and expenses, on top of your own.
Also, though most often complaints about independent contractor classification are made by a lawsuit filed by the worker, you should know that the Massachusetts Attorney General has enforcement authority under the Independent Contractor Law, and can investigate and impose penalties on the employer even if your contractors do not complain.
If you’re struggling to determine whether you or the person you’ve hired is considered an independent contractor or W-2 employee, don’t worry! Contact us today and our team will help you figure it out, stress-free.