For those of you who were able to join us for Sherman & Howard’s Construction Law seminar earlier this month, you may remember our warnings about making sure your company is properly classifying and paying its employees. In case you need a reminder on how serious these issues can become, be sure to consider the 30 month prison sentence one employer from North Carolina just received for failure to report and pay employment taxes, along with a hefty $1.7 million restitution bill. https://www.justice.gov/opa/pr/north-carolina-mental-health-executive-sentenced-prison-failure-pay-employment-taxes. While this may be an extreme example, it is very real and very terrifying.
Remember – when you have one agency knocking at your door, you are likely to hear from more. In fact, here in Colorado the US Department of Labor (“DOL”), the Colorado Department of Labor and Employment (“CDLE”), and the Internal Revenue Service (“IRS”) have been sharing information concerning potentially misclassified employees since 2011. https://www.dol.gov/whd/workers/Misclassification/co.htm; https://www.dol.gov/whd/workers/MOU/irs.pdf. While it is unlikely that a company, or its executives, that unintentionally misclassifies an employee will end up facing jail time, the financial repercussions can still be staggering, with agencies reporting huge recoveries due to misclassification on a regular basis. See, e.g., https://www.dol.gov/newsroom/releases/whd/whd20160817-0 ($365,000 paid – “the Wage and Hour division considers misclassification a top enforcement priority and is working alongside our state, local and federal partners to achieve greater compliance with the law”); https://www.dol.gov/newsroom/releases/whd/whd20110309 (over $700,000 paid – “misclassification of employees as exempt from the FLSA has become a common problem and one the Labor Department is determined to bring to light”); https://www.osha.gov/news/newsreleases/region1/02222016-0 (OSHA fines of over $20,000 upheld against company who attempted to “evade their responsibility by claiming that workers on a job site are independent contractors when the facts show otherwise”).
Don’t be the next news story – avoid the risky business of misclassifying your employees. Conduct an individualized assessment with the assistance of legal counsel, if necessary, to determine whether the classification you are considering using is permissible under the applicable laws before the agencies come knocking.