What should I do if I think I've misclassified someone?

Address it sooner rather than later — the exposure grows over time. We help businesses review classifications, correct them, and reduce the risk of penalties. It's far cheaper to fix proactively than after an audit.

Our contract clearly says independent contractor. Is that not enough?

No. Agencies look at how the relationship actually works — who controls the how and when, who bears the financial risk, whether the person genuinely serves other clients — and a contract that describes something different from the day-to-day reality carries very little weight. It helps, but only when it matches the facts.

Can someone be a contractor in one state and an employee in another?

Yes, and it catches out businesses hiring remotely. Some states apply a stricter test than the federal one, so an arrangement that is defensible where you are based may not be where the person actually works. Worth checking before the engagement starts rather than at renewal.

Compliance

Employee vs. Contractor: Are You Misclassifying Your Workers?

Calling a worker a “contractor” doesn't make them one. Misclassification is one of the most common — and costly — mistakes small businesses make. Here's how to get it right.

Published July 1, 2026

Two document folders side by side on a desk, a hand pausing between them

The problem

It's easier to get wrong than you'd think

Independent contractors are appealing to small businesses: no payroll taxes, no benefits, less paperwork. So it's tempting to bring someone on as a “1099 contractor” and move on. But whether a worker is truly a contractor isn't up to you or the worker — it's determined by the actual working relationship, and the government has its own tests. Get it wrong, and the bill for back taxes, penalties, and benefits can be severe.

The difference

What actually separates an employee from a contractor

The core question is control. The more control your business has over how, when, and where the work gets done, the more likely the worker is an employee. Agencies generally look at factors like these:

Who controls how and when the work is done
Whether you provide tools, equipment, and training
How central the work is to your business
Whether the worker offers services to other clients
How the worker is paid (salary/hourly vs. per project)
Whether the relationship is ongoing or project-based

No single factor decides it. A true contractor typically runs their own business, uses their own tools, sets their own methods, and serves multiple clients. Someone who works set hours, uses your equipment, and answers to your direction is almost certainly an employee — no matter what the paperwork says. Some states, like California, apply an especially strict “ABC test” that makes contractor status even harder to claim.

The stakes

What misclassification actually costs

If a worker you've treated as a contractor is reclassified as an employee — by the IRS, the Department of Labor, or a state agency — you can be on the hook for unpaid payroll taxes, overtime you never paid, penalties, interest, and sometimes benefits the person should have received. These cases often start with something small: a contractor files for unemployment, gets hurt on the job, or disputes their pay, and an investigation follows. For a small business, a single reclassification can turn into a five-figure problem.

Protect yourself

How to stay on the right side of the line

Classify based on the real relationship, not convenience
Use written contracts that reflect genuine independence
Don't control a contractor like an employee
Check the stricter rules in states where you operate
Review long-running “contractor” roles carefully
When in doubt, get a professional opinion

Worker classification is a core part of HR compliance, and it's on our compliance checklist for good reason. If you have contractors who look a lot like employees, it's worth a second look before someone else takes one for you.

More than one test

Different agencies apply different tests to the same worker

There is no single definition of a contractor. The same working relationship can be assessed under several tests at once, and they do not always reach the same answer.

The IRS looks primarily at behavioral control, financial control and the nature of the relationship; its worker classification guidance sets out how those factors are weighed. The Department of Labor applies an economic-reality analysis under the FLSA, asking in substance whether the worker is in business for themselves or economically dependent on you — its misclassification guidance covers that. Several states apply a stricter test again, under which a worker is presumed to be an employee unless narrow conditions are met.

This is why a contract saying "independent contractor" settles very little. The label is one factor among many, and the test that matters depends on which agency is asking and which state the work happens in. A worker can be a contractor for one purpose and an employee for another, which is uncomfortable but not unusual.

IRS: behavioral control, financial control, relationship
DOL: economic dependence under the FLSA
Several states: a stricter, presumption-based test
The written contract is evidence, not the answer

FAQ

Worker classification questions

Not really. Classification is based on the actual working relationship and legal tests, not preference. Even if a worker asks to be treated as a contractor, you can still be liable if the relationship looks like employment.

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