The Freelancer’s Dilemma : W2 or 1099

So we continue with the get-your-house-in-order year-end organization.  This week,  you can think about your tax status in an even more elemental way:  are you a Freelance consultant who is on a very long assignment,  or are you an employee?  The federal government continues its focus on the proper classification of employees and contract workers.  Businesses are cutting back on hiring workers who must be paid benefits and the feds are snooping around.  Improper classification of workers violates the Fair Labor Standards Act (FLSA).

As you know,   Freelance consultants are not covered by federal or state wage or hour laws;  are ineligible for employee benefits such as health insurance and retirement plans; and cannot form or join a union.   Our employers are not required to make any withholding whatsoever and so we do not receive unemployment benefits and no one pays into our social security or medicare accounts,  no one deducts federal and state taxes for us.

The good thing is that we have 100%  of our money in hand when the check arrives and that has probably saved you more than once!  The downside is that we are left with a tax bill,  including self-employment  tax,  every quarter.

Businesses may be totally flummoxed about how to classify workers.  For example,  the Internal Revenue Service may classify a worker as an employee and determine that he/she is entitled to participate in the company retirement plan under the Employee Retirement Income Security Act (ERISA).  State government officials may classify that same worker as an independent contractor when determining whether or not that worker is entitled to unemployment benefits.

There are different tests for distinguishing independent contractors from employees.  A big factor is whether the worker or the company controls the manner in which the work is performed.  The more the Freelancer,  as opposed to the employer/client,  controls where,  when and how the work is performed,  the more likely that an independent contractor arrangement exists.   To further clarify,  individuals who are free to provide services to other clients and are able to sub-contract their work are more likely to be classified as independent contractors.

Other considerations include:

  • Whether the worker uses his/her own supplies and equipment to perform the work wherever it is convenient  (like on a computer in a library,  or a cell phone in a coffee shop).
  • Whether the worker can reject an assignment without  fearing termination of the work arrangement.
  • Whether the worker pays his/her own business and travel expenses.

The above conditions would incline that worker toward classification as an independent contractor.  Whether or not a worker has independent contractor or employee status has huge economic implications for both the employer/client and the W2/1099 worker.  Unfortunately,  in today’s job market,  workers are in a vulnerable position,  regardless of the government’s heightened scrutiny of possible mis-classification.

Very few Freelancers who ought to be classified as employees will turn in an employer who is offering steady work,  particularly if the hourly rate is considered acceptable.   We will put up with a few things to get a reliable check.  If you suspect that you are really a W2 who is treated as a 1099 by a business that wants  (or maybe really needs)  to save money,  look at the big picture.

Are you happy working there?  Is the money good?  Is the work good for your CV and the name good for your client list? Are you able to squeeze in work for other clients  (with or without that employer’s knowledge)?

Without exactly letting on that you know the employer is breaking the law,  you might be able to bargain for a few perks,  such as less face time in the office,  or perhaps a shot at working on better projects.  It’s a touchy situation and you don’t want to kill the golden goose.  I’d probably speak with an employment attorney to figure out a strategy.  You don’t want to lose either a regular revenue stream or a reference.  Chalk it up to what one does to remain in business.

Thanks for reading,