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The Misclassification Audit Nightmare: What NOT to Do If You Are Audited

Post by TCWGlobal
September 11, 2023
The Misclassification Audit Nightmare: What NOT to Do If You Are Audited

High-profile misclassification lawsuits are frequently in the news these days. This surge can be attributed to two main reasons: Firstly, organizations are turning more to remote workers to address talent shortages. Secondly, there's a growing emphasis on employee protection laws, prompting courts to ensure damages are awarded in cases of misclassification.

Key Takeaways:

  1. Don't Misunderstand the Classification Categories
  2. When Does Misclassification Lead to The Dreaded Audit
  3. Don't Ignore the Audit
  4. Don't Freak Out
  5. Don't Try and Go it Alone
  6. Don't Fail to Get Prepared
  7. Don't Ignore the Recommendations
  8. Preventing Misclassification Fiascos from the Get-Go

Don't Misunderstand the Classification Categories

When organizations classify workers as independent contractors, they essentially remove their responsibility of having to withhold payroll taxes like Social Security, Medicare, and Federal Unemployment on behalf of the contractor. The contractor does not receive employee benefits, such as paid time off, medical insurance, or worker’s compensation insurance. Instead, the contractor is responsible for providing all of these things for themselves, which exposes those them to economic costs and deprives them of what some states have determined to be fundamental labor rights if they are misclassified.


So, When Does Misclassification Lead to The Dreaded Audit?

When an independent contractor files an unemployment claim, it may lead to an IRS audit if certain conditions exist. If a worker receives both W-2 and 1099 forms from the same employer within one tax year, and the ratio of 1099 forms to W-2 forms is significantly disproportionate, the IRS may investigate further.

To prevent such misclassifications, the IRS and state agencies provide education to employees, informing them of their rights and proper classification guidelines.

Organizational audits can be triggered by various actions: a contractor filing for unemployment or worker’s compensation benefits, a whistleblower calling out misclassification, or a worker filing an SS-8 form to settle the classification debate.

These complaints often revolve around issues related to social security and Medicare taxes (payroll taxes), as independent contractors are responsible for paying their own taxes at a higher rate than the taxes paid by the employer for W-2 employees. When such complaints arise, it draws the attention of the authorities and increases the likelihood of an audit.


Don't Ignore The Audit

This may sound obvious, but it can be easy to miss deadlines when things are busy. Let's face it, audits never come at a good time.

Audits can and often do come seemingly out of nowhere, demanding endless time and unexpected legal expenses. Even unintentional misclassification can put your organization in serious jeopardy, facing penalties ranging from monetary fines (think back taxes, back pay, or healthcare coverage for misclassified workers) to reputation damage and criminal or civil penalties that leave a lasting scar.

As you can see, ignoring an audit for misclassifying workers can have serious consequences. It may result in substantial financial penalties, including back taxes, interest, and potential legal fees. Addressing the audit promptly and taking corrective measures is crucial to mitigate these risks and maintain compliance with labor and tax regulations.


Don't Freak Out 

Remember you are not alone in potentially misclassifying workers. If you’ve seen the news lately, you know that some big names have recently been hit with misclassification audits and fines.

When faced with a worker misclassification audit, it's understandable to feel anxious or worried. However, it's important to approach the situation as calmly as possible, and avoid the mistakes that may come with working under stress:

  1. Audits are a part of ensuring compliance and fairness for the workforce, so it's not something unique to your situation.

  2. By maintaining a level head, you can effectively navigate the audit process and work towards a resolution.

  3. Audits provide an opportunity to rectify any misclassifications and make necessary adjustments to ensure proper classification moving forward. By addressing the issue proactively, you can minimize any potential penalties or liabilities.

  4. Seeking professional advice or assistance from experts in labor laws and regulations can greatly help in navigating the audit process and ensuring a favorable outcome.

Remember, staying calm, proactive, and seeking guidance will go a long way in resolving the situation and avoiding unnecessary stress. 


Don't Try and Go it Alone. 

Hire legal representation well-versed in employment tax and labor law. These legal eagles will guide you through the correct processes, act as mediators with auditors, and attempt to limit the scope of the audit to reduce fines. They'll help you gather background information, review records, determine if misclassification occurred, and even sniff out fraud.

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Don't Fail to Get Prepared

During the audit, the auditor will come knocking for records like 1099s, bank statements, income tax returns, and financial statements. Setting up an internal audit team with representatives from different departments can be a lifesaver when it comes to swiftly locating those documents. And if the audit's scope demands it, you might find yourself face-to-face with the auditor, reviewing specific cases or sharing additional information. So it’s best to start getting all things in order as soon as possible.


Don't Ignore the Recommendations

Once the dust settles, it's crucial to make all required, and some voluntary changes to shield your company from future misclassification nightmares. Ignoring the auditors can result in increased scrutiny, additional penalties, and potential legal ramifications. 

By voluntarily making the additional changes to ensure even greater compliance, you can shield your company from future risks, protect your reputation, and ensure a fair and compliant work environment. Taking proactive steps demonstrates your commitment to following the law and can help build trust with both your employees and regulatory authorities.


Preventing Misclassification Fiascos from the Get-Go

Of course, the best way to dodge an audit is by minimizing the risk from the very beginning. Start with an internal audit to assess your company's policies, practices, and records concerning independent contractors. If you aren't sure where even to begin, here's a company that specializes in helping companies avoid employment law and compliance issues. 

It's your chance to uncover gaps and areas that need a little tightening up. When engaging independent contractors, have clear-cut policies and processes in place to ensure accurate classification to the best of your ability. Keep handy the supporting documents you may need as evidence of self-employment, and always, always seal the deal with a written contract. 

While there are many more precautionary measures you could take internally, they often require extensive legal research, a dedicated team, not to mention, a boatload of time and resources. That's why many organizations that rely on distributed workers choose to partner with firms specializing in independent contractor compliance and engagement, such as TCWGlobal. 

This collaboration helps companies adhere to compliance standards, reduce misclassification risks, and establish reliable programs to manage their independent workforce. And in the end, it's cheaper than being fined. 

Remember, misclassification audits can be the stuff of nightmares, but with the right knowledge and proactive measures, you can steer clear of disaster. 

Stay informed, stay compliant, and keep those audits at bay.


Need Help?

Whether you need expertise in Employer of Record (EOR) services, Managed Service Provider (MSP) solutions, or Vendor Management Systems (VMS), our team is equipped to support your business needs. We specialize in addressing worker misclassification, offering comprehensive payroll solutions, and managing global payroll intricacies. 

From remote workforce management to workforce compliance, and from international hiring to employee benefits administration, TCWGlobal has the experience and resources to streamline your HR functions. Our services also include HR outsourcing, talent acquisition, freelancer management, and contractor compliance, ensuring seamless cross-border employment and adherence to labor laws. 

We help you navigate employment contracts, tax compliance, workforce flexibility, and risk mitigation, all tailored to your unique business requirements. Contact us today at or email us at to discover how we can help your organization thrive in today's dynamic work environment. Let TCWGlobal assist with all your payrolling needs!


Post by TCWGlobal
September 11, 2023