Vision Payroll

This week’s question comes from Louisa, an HR manager: We have individuals who perform services for us. Does Massachusetts have any laws to determine if these individuals are our employees or independent contractors? Answer: In Massachusetts General Laws (MGL), c. 149, §148B three tests are enumerated and unless the individual meets all three tests, an employer-employee relationship will result. The tests are (1) the individual is free from control and direction in connection with the performance of the service, both under his contract for the performance of service and in fact; and (2) the service is performed outside the usual course of the business of the employer; and, (3) 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. The law also states that not withholding federal or state income taxes or not paying unemployment insurance or workers compensation insurance premiums for this individual has no impact on the determination. Furthermore, even if the individual has a workers’ compensation insurance policy, it is not relevant for making the determination. To further complicate matters, the Massachusetts Department of Revenue (DOR) issued TIR 05-11, that states the DOR will follow the rules of MGL c. 62B for withholding purposes. Significant penalties exist for misclassifying workers, so be sure to consult your attorney if you have further questions.

In Private Letter Ruling 200825043, the IRS concluded that employers who receive a determination letter from the IRS that someone previously classified as an independent contractor should be classified as a employee may use §3509 to reduce the amount of employee FICA tax and federal income tax payable. The federal withholding in such cases is reduced to 1.5% of wages regardless of what the employee claims on a Form W-4. The FICA tax rate is reduced from 7.65% to 1.53% on the employee’s portion. The employer’s rate remains at 7.65%. If the employer did not file Form 1099-MISC for payments made to the newly-classified employee, the employee withholding rates are doubled. Furthermore, no interest is charged on the late payment of the employee’s portion of the tax.