Independent Contractor Status Liability

Transcription

1 Independent Contractor Status Liability Husch Blackwell LLP Why Do Compliance Officers Care? The IRS is auditing hospital and other relationships that have historically not been questioned like locum tenens. Now the industry needs to be prepared to defend those relationships and develop a fall back plan if unsuccessful. 2 Independent Contractor Liability The IRS is cracking down on what it sees as the abuse of the Independent Contractor status by demanding that employers, including hospitals, reclassify physicians as employees. IRS rationale Summary of enforcement history Where the IRS currently stands and current litigation prognosis 3 1

2 Independent Contractor Liability Other legal implications: Corporate Practice of Medicine Fraud and Abuse laws for instance, meeting the Group Practice Definition under the Stark Law Malpractice and other vicarious liabilities for employee vs. independent contractors 4 MISCLASSIFICATION FOG WHO SAID: [A]pplying the common law test in employment tax issues does not yield clear, consistent, or satisfactory answers, and reasonable persons may differ as to the correct classification. Statement of Natwar M. Gandhi, Associate Director, Tax Policy and Administration Issues, General Government Division, GAO, June 20, 1996 ANSWER: Department of the Treasury, of which the IRS is a part 5 MISCLASSIFICATION FOG (CON T) WHO CARES ABOUT WORKER CLASSIFICATION? (1) IRS TAXES TAXES TAXES AND MORE FICA Tax* Medicare Taxes* Federal Income Tax Withholding* Federal Unemployment Taxes (FUTA) Penalties Interest 4980 Excise Tax related to Health Insurance Coverage Under the ACA * Income of independent contractors is subject to similar taxes, so the government is entitled to similar amounts with respect to these items, irrespective of classification. NOTE: An IRS study estimated that employees under report income by 1% compared to 8% for independent contractors. 6 2

3 MISCLASSIFICATION FOG (CON T) WHO CARES ABOUT WORKER CLASSIFICATION? (continued) (2) U.S. Department of Labor Minimum Wage Overtime ERISA Coverage Benefit Plan Coverage for Group Health, Disability and Life Insurance Coverage Vacation and Sick Pay Work Expense Reimbursement Union Eligibility (3) State Agencies Unemployment Taxes Workers Compensation Unemployment claims Government contract participation 7 ENFORCEMENT: THE FOG ROLLS IN Prior to 1960, employment tax audits were superficial, or sporadic and only occasionally looked at classification issues; most taxpayers relied on their own judgment, industry practice.or Revenue Rulings. In the late 1960s, the IRS increased enforcement, and controversy ensued. During the 1976 Tax Reform Act conference, conferees included a request that the IRS not apply any changed position or any newly stated position to past taxable years until the completion of a study by the Joint Committee on Taxation. This led to the passage of Section 530 of the Revenue Act of 1978 which, among other things, to this day: Allows taxpayers with a reasonable basis for not treating workers as employees in the past to continue such treatment, while Congress works on a comprehensive solution. Prohibits the Treasury or the IRS from issuing regulations and revenue rulings on common law employment status. 8 ENFORCEMENT (continued) The IRS has felt hamstrung by Section 530, and has interpreted it and the misclassification issue as a whole leniently or less leniently, depending on the year. In 1988, the IRS began its Employment Tax Enforcement Program, in which hospitals were one of the targets. Senator Barack Obama sponsored legislation to limit the application of Section 530, and has made worker misclassification a budget priority during his presidency. In February 2010, the IRS began the Employment Tax National Research Project to audit 6,000 companies to gather information on misclassification, and has generally increased the public profile of employment tax audits. On September 19, 2011, the IRS and DOL signed a MOU setthing forth a joint initiative to improve compliance with regard to employment laws, specifically agreeing to expand their partnership on Questionable Employment Practices. In September 2011, the IRS announced the Voluntary Classification Settlement Program for prospective reclassificaiton. In July 2015, DOL announced its latest interpretation of the Economic Realties Test, focusing on the economic dependence of the work on the compensation payer. 9 3

4 THE TESTS: PEA SOUP FOG With regard to the IRS Tests: Many employers struggle in making the classification decision because of the unclear rules. Until the classification rules are clarified, we are not optimistic that the confusion over who is an independent contractor and who is an employee can be avoided. Statement of Natwar M. Gandhi, Associate Director, Tax Policy and Administration Issues, General Government Division, GAO, June 20, 1996 With regard to the DOL Economic Realities Test, DOL stated: The number of factors and the exact articulation of the factors may vary some depending on the court. Courts routinely note that they may consider additional factors depending on the circumstances and that no one factor is determinative. Administrator s Interpretation No (PDF) _1.htm#3 10 IRS TEST THE SHORT VERSION The 20 factors are: (1) Instructions. The more instructions that are given, the more likely is employee status. (2) Training. The more training, the more likely is employee status. (3) Integration. The more closely integrated the work is with the employer's business, the more likely is employee status. (4) Services Rendered Personally. If the worker must personally do the work, employee status is likely. (5) Hiring, Supervising, and Paying Assistants. A person who does these things will often be an independent contractor. (6) Continuing Relationship. The longer the arrangement's term, the more likely is employee status. (7) Set Hours of Work. Set hours indicate employee status. 11 SHORT VERSION (continued) (8) Full-time Required. This indicates employee status. (9) Doing Work on Employer's Premises. This may indicate employee status. (10) Order or Sequence Set. Power on the part of the employer to determine the order in which services are performed tends to indicate employee status. (11) Oral or Written Reports. Reports to an employer tend to indicate employee status. (12) Payment by Hour, Week, Month. This tends to indicate employee status. (13) Payment of Business and Traveling Expenses. This tends to indicate employee status. (14) Furnishing of Tools and Materials. This tends to indicate employee status. 12 4

5 SHORT VERSION (continued) (15) Significant Investment. A worker's significant investment tends to indicate independent contractor status. (16) Realization of Profit or Loss. A worker's potential for these indicates independent contractor status. (17) Working for More Than One Firm at a Time. This indicates independent contractor status. (18) Making Service Available to General Public. This indicates independent contractor status.(19) Right to Discharge. This indicates employee status.(20) Right to Terminate. A worker's right to terminate the relationship without liability indicates employee status. A contractor would typically have to finish the particular project which he contracted to provide. Rev. Rul , C.B IRS 20 FACTOR TEST LEGAL TEST o The legal test is whether there is a right to direct and control the means and details of the work. To determine whether the control test is satisfied in a particular case, the facts and circumstances must be analyzed. o Over the years, the IRS and Social Security Administration compiled a list of 20 factors used in court decisions to determine workers status. These 20 factors were eventually published in Rev. Rul , C.B. 296, and are sometimes called the Twenty Factor Test. o This Twenty Factor Test is an analytical tool and NOT the legal control test used for determining worker status Instructions. A worker who is required to comply with the other persons instructions about when, where and how he or she is to work is ordinarily an employee. This control factor is present if the person or persons for whom the services are performed have the right to require compliance with instructions. See, for example, Rev. Rul , C.B. 464 and Rev. Rul , C.B Training. Training a worker by requiring an experienced employee to work with the worker, by corresponding with the worker, by requiring the worker to attend meetings, or by using other methods, indicates that the person or persons for whom the services are performed want the services performed in a particular method or manner. See Rev. Rul , C.B Integration. Integration of the worker s services into the business operations generally shows that the worker is subject to direction and control. When the success or continuation of a business depends to an appreciable degree upon the performance of certain services, the workers who perform those services must necessarily be subject to a certain amount of control by the owner of the business. See United States v. Silk, 331 U.S. 704 (1947), C.B

6 4. Services Rendered Personally. If the services must be rendered personally, presumably the person or persons for whom the services are performed are interested in the methods used to accomplish the work, as well as in the results. See Rev. Rul , C.B Hiring, Supervising and Paying Assistants. If the person or persons for whom the services are performed hire, supervise and pay assistants, that factor generally shows control over the workers on the job. However, if one worker hires, supervises and pays the other assistants pursuant to a contract under which the worker agrees to provide materials and labor and under which the worker is responsible only for the attainment of a result, this factor indicates an independent contractor status. Compare Rev. Rul , C.B. 178, with Rev. Rul , C.B Continuing Relationship. A continuing relationship between the worker and the person or persons for whom the services are performed indicates that an employer-employee relationship exists. A continuing relationship may exist where work is performed at frequently recurring although irregular intervals. See United States v. Silk Set Hours of Work. The establishment of set hours of work by the person or persons for whom the services are performed is a factor indicating control. See Rev. Rul , C.B <Page 299> 8. Full Time Required. If the worker must devote substantially full time to the business of the person or persons for whom the services are performed, such person or persons have control over the amount of time the worker spends working and impliedly restrict the worker from doing other gainful work. An independent contractor, on the other hand, is free to work when and for whom he or she chooses. See Rev. Rul , C.B Doing Work on Employer s Premises. If the work is performed on the premises of the person or persons for whom the services are performed, that factor suggests control over the worker, especially if the work could be done elsewhere. Rev. Rul , C.B Work done off the premises of the person or persons receiving the services, such as at the office of the worker, indicates some freedom from control. However, this fact by itself does not mean that the worker is not an employee. The importance of this factor depends on the nature of the service involved and the extent to which an employer generally would require that employees perform such services on the employer's premises. Control over the place of work is indicated when the person or persons for whom the services are performed have the right to compel the worker to travel a designated route, to canvass a territory within a certain time, or to work at specific places as required. See Rev. Rul Order or Sequence Set. If a worker must perform services in the order or sequence set by the person or persons for whom the services are performed, that factor shows that the worker is not free to follow the worker's own pattern of work but must follow the established routines and schedules of the person or persons for whom the services are performed. Often, because of the nature of an occupation, the person or persons for whom the services are performed do not set the order of the services or set the order infrequently. It is sufficient to show control, however, if such person or persons retain the right to do so. See Rev. Rul

7 11. Oral or Written Reports. A requirement that the worker submit regular or written reports to the person or persons for whom the services are performed indicates a degree of control. See Rev. Rul , C.B. 199, and Rev. Rul , C.B Payment by Hour, Week, Month. Payment by the hour, week, or month generally points to an employer-employee relationship, provided that this method of payment is not just a convenient way of paying a lump sum agreed upon as the cost of a job. Payment made by the job or on a straight commission generally indicates that the worker is an independent contractor. See Rev. Rul , C.B Payment of Business and/or Traveling Expenses. If the person or persons for whom the services are performed ordinarily pay the worker's business and/or traveling expenses, the worker is ordinarily an employee. An employer, to be able to control expenses, generally retains the right to regulate and direct the worker's business activities. See Rev. Rul , C.B Furnishing of Tools and Materials. The fact that the person or persons for whom the services are performed furnish significant tools, materials, and other equipment tends to show the existence of an employer- employee relationship. See Rev. Rul , C.B Significant Investment. If the worker invests in facilities that are used by the worker in performing services and are not typically maintained by employees (such as the maintenance of an office rented at fair value from an unrelated party), that factor tends to indicate that the worker is an independent contractor. On the other hand, lack of investment in facilities indicates dependence on the person or persons for whom the services are performed for such facilities and, accordingly, the existence of an employer-employee relationship. See Rev. Rul Special scrutiny is required with respect to certain types of facilities, such as home offices Realization of Profit or Loss. A worker who can realize a profit or suffer a loss as a result of the worker's services (in addition to the profit or loss ordinarily realized by employees) is generally an independent contractor, but the worker who cannot is an employee. See Rev. Rul For example, if the worker is subject to a real risk of economic loss due to significant investments or a bona fide liability for expenses, such as salary payments to unrelated employees, that factor indicates that the worker is an independent contractor. The risk that a worker will not receive payment for his or her services, however, is common to both independent contractors and employees and thus does not constitute a sufficient economic risk to support treatment as an independent contractor. 17. Working for More than One Firm at a Time. If a worker performs more than de minimis services for a multiple of unrelated persons or firms at the same time, that factor generally indicates that the worker is an independent contractor. See Rev. Rul , C.B However, a worker who performs services for more than one person may be an employee of each of the persons, especially where such persons are part of the same service arrangement. 21 7

8 18. Making Service Available to General Public. The fact that a worker makes his or her services available to the general public on a regular and consistent basis indicates an independent contractor relationship. See Rev. Rul Right to Discharge. The right to discharge a worker is a factor indicating that the worker is an employee and the person possessing the right is an employer. An employer exercises control through the threat of dismissal, which causes the worker to obey the employer's instructions. An independent contractor, on the other hand, cannot be fired so long as the independent contractor produces a result that meets the contract specifications. Rev. Rul , C.B Right to Terminate. If the worker has the right to end his or her relationship with the person for whom the services are performed at any time he or she wishes without incurring liability, that factor indicates an employer-employee relationship. See Rev. Rul FACTORS IS COMPLICATED SO LET S ACT LIKE WE HAVE ONLY 3 1. BEHAVIORAL CONTROL Facts which illustrate whether there is a right to direct or control how the worker performs the specific task for which he or she is hired: Instruction 2. FINANCIAL CONTROL Training Facts which illustrate whether there is a right to direct or control how the business aspects of the worker s activities are conducted: Significant investment Services available to the public 3. RELATIONSHIP OF PARTIES Unreimbursed expenses Opportunity for profit or loss Facts which illustrate how the parties perceive their relationship: Intent of parties/written contracts Employee benefits Length of relationship Incorporation Discharge/termination Regular business activity 23 DOL ECONOMIC REALITIES TEST While the factors considered can vary, and while no one set of factors is exclusive, the following factors are generally considered when determining whether an employment relationship exists under the FLSA (i.e., whether a worker is an employee, as opposed to an independent contractor): 1) The extent to which the work performed is an integral part of the employer s business. If the work performed by a worker is integral to the employer s business, it is more likely that the worker is economically dependent on the employer and less likely that the worker is in business for himself or herself. For example, work is integral to the employer s business if it is a part of its production process or if it is a service that the employer is in business to provide. 2) Whether the worker s managerial skills affect his or her opportunity for profit and loss. Managerial skill may be indicated by the hiring and supervision of workers or by investment in equipment. Analysis of this factor should focus on whether the worker exercises managerial skills and, if so, whether those skills affect that worker s opportunity for both profit and loss. 24 8

9 DOL ECONOMIC REALITIES TEST (continued) 3) The relative investments in facilities and equipment by the worker and the employer. The worker must make some investment compared to the employer s investment (and bear some risk for a loss) in order for there to be an indication that he/she is an independent contractor in business for himself or herself. A worker s investment in tools and equipment to perform the work does not necessarily indicate independent contractor status, because such tools and equipment may simply be required to perform the work for the employer. If a worker s business investment compares favorably enough to the employer s that they appear to be sharing risk of loss, this factor indicates that the worker may be an independent contractor. 4) The worker s skill and initiative. Both employees and independent contractors may be skilled workers. To indicate possible independent contractor status, the worker s skills should demonstrate that he or she exercises independent business judgment. Further, the fact that a worker is in open market competition with others would suggest independent contractor status. For example, specialized skills possessed by carpenters, construction workers, and electricians are not themselves indicative of independent contractor status; rather, it is whether these workers take initiative to operate as independent businesses, as opposed to being economically dependent, that suggests independent contractor status. 25 DOL ECONOMIC REALITIES TEST (continued) 5) The permanency of the worker s relationship with the employer. Permanency or indefiniteness in the worker s relationship with the employer suggests that the worker is an employee, as opposed to an independent contractor. However, a worker s lack of a permanent relationship with the employer does not necessarily suggest independent contractor status because the impermanent relationship may be due to industry-specific factors, or the fact that an employer routinely uses staffing agencies. 6) The nature and degree of control by the employer. Analysis of this factor includes who sets pay amounts and work hours and who determines how the work is performed, as well as whether the worker is free to work for others and hire helpers. An independent contractor generally works free from control by the employer (or anyone else, including the employer s clients). This is a complex factor that warrants careful review because both employees and independent contractors can have work situations that include minimal control by the employer. However, this factor does not hold any greater weight than the other factors. For example, a worker s control of his or her own work hours is not necessarily indicative of independent contractor status; instead, the worker must control meaningful aspects of the working relationship. Further, the mere fact that a worker works from home or offsite is not indicative of independent contractor status because the employer may exercise substantial control over the working relationship even if it exercises less day-to-day control over the employee s work at the remote worksite. 26 DOL ECONOMIC REALITIES TEST (continued) There are certain factors which are immaterial in determining the existence of an employment relationship. For example, the fact that the worker has signed an agreement stating that he or she is an independent contractor is not controlling because the reality of the working relationship and not the label given to the relationship in an agreement is determinative. Likewise, the fact that the worker has incorporated a business and/or is licensed by a State/local government agency has little bearing on determining the existence of an employment relationship. Additionally, the Supreme Court has held that employee status is not determined by the time or mode of pay. 27 9

10 DOL LIKES EMPLOYEES SO FOCUS ON ECONOMIC DEPENDENCE In undertaking this analysis, each factor is examined and analyzed in relation to one another, and no single factor is determinative. The control factor, for example, should not be given undue weight. The factors should be considered in totality to determine whether a worker is economically dependent on the employer, and thus an employee. The factors should not be applied as a checklist, but rather the outcome must be determined by a qualitative rather than a quantitative analysis. The application of the economic realities factors is guided by the overarching principle that the FLSA should be liberally construed to provide broad coverage for workers, as evidenced by the Act s defining employ as to suffer or permit to work. In applying the economic realities factors, courts have described independent contractors as those workers with economic independence who are operating a business of their own. On the other hand, workers who are economically dependent on the employer, regardless of skill level, are employees covered by the FLSA. 28 DOL LIKES EMPLOYEES SO (continued) See, e.g., Hopkins v. Cornerstone Am., 545 F.3d 338, 343 (5th Cir. 2008) ( To determine if a worker qualifies as an employee, we focus on whether, as a matter of economic reality, the worker is economically dependent upon the alleged employer or is instead in business for himself. ); Baker v. Flint Eng g & Constr. Co., 137 F.3d 1436, 1440 (10th Cir. 1998) (the economic realities of the relationship govern, and the focal point is whether the individual is economically dependent on the business to which he renders service or is, as a matter of economic fact, in business for himself); Brock v. Superior Care, Inc., 840 F.2d 1054, 1059 (2d Cir. 1988) ( The ultimate concern is whether, as a matter of economic reality, the workers depend on someone else s business... or are in business for themselves. ). Ultimately, in considering economic dependence, the court focuses on whether an individual is in business for himself or is dependent upon finding employment in the business of others. Scantland v. Jeffry Knight, Inc., 721 F.3d 1308, 1312 (11th Cir. 2013) (quoting Mednick v. Albert Enters., Inc., 508 F.2d 297, (5th Cir. 1975)). 29 FSLA REQUIRES A DIFFERENT STANDARD THAN IRS COMMON LAW CONTROL TEST--Foggy Bottom Common law control test used by the IRS, analyzes whether a worker is an employee based on the employer s control over the worker and not the broader economic realities of the working relationship. The suffer or permit standard broadens the scope of employment relationships covered by the FLSA. Indeed, the FLSA s statutory definitions (including suffer or permit ) rejected the common law control test that was prevalent at the time. As the Supreme Court explained: [I]n determining who are employees under the Act, common law employee categories or employer-employee classifications under other statutes are not of controlling significance. This Act contains its own definitions, comprehensive enough to require its application to many persons and working relationships, which prior to this Act, were not deemed to fall within an employer-employee category. Walling, 330 U.S. at (internal citation omitted); see also Darden, 503 U.S. at 326 (FLSA s suffer or permit standard for employment stretches the meaning of employee to cover some parties who might not qualify as such under a strict application of traditional agency law principles. ); Antenor, 88 F.3d at 933 ( Indeed, the suffer or permit to work standard was developed to assign responsibility to businesses that did not directly supervise putative employees. ). Thus, the scope of employment under the FLSA is the broadest definition that has ever been included in any one act. Rosenwasser, 323 U.S. at 363 n.3 (quotingfromstatementof SenatorBlack on Senatefloor)

11 SECTION 530 The taxpayer must meet two consistency requirements before the relief provisions of section 530 apply. The relief applies only if: All federal tax returns, including information returns such as Form 1099-MISC required to be filed with respect to the worker for the period, are timely filed and are filed on a basis consistent with the taxpayer s treatment of the worker as not being an employee. See discussion at IRM , Consistency Requirement Reporting Consistency, and The treatment of the worker as not being an employee is consistent with the treatment by the taxpayer (or predecessor) of all workers holding substantially similar positions. See discussion at IRM , Consistency Requirement Substantive Consistency. In addition to the consistency requirements, the taxpayer must have had a reasonable basis for not treating the worker as an employee. See discussion at IRM , Section Reasonable Basis, and following subsections. IRM Corporate Practice of Medicine What is it? Texas s prohibition is especially robust (with exceptions for some rural or public hospitals). If violated: (1) physicians can be sanctioned; (2) agreement void. 32 Corporate Practice of Medicine Can you be an employee for purposes of IRS but not Texas law? 33 11

12 Fraud and Abuse Employees and Independent Contractors are treated differently. Examples: Federal Anti-Kickback Statute (42 USC Sect. 1320a- 7b(b)) Texas Patient Solicitation Act (Texas Occ. Code, Chapter. 201) Stark law (42 USC Sect. 1395nn) 34 Fraud and Abuse Be mindful how of Stark law Group Practice definition is impacted. Member of the Group does not include independent contractors. To meet Group Practice definition, at least 75 percent of the total patient care services of the group practice members must be furnished through the group and billed under a billing number assigned to the group. (42 CFR Sect ). What if you are now considered a hospital employee? 35 Ostensible Agency Someone who hires an independent contractor who has sole control over the means and methods of his work is generally not liable for the contractor s negligence

13 Ostensible Agency Under an ostensible agency theory, a hospital can be liable for a contractor physician s work. Baptist Memorial Hosp. System v. Sampson, 969 S.W.2d 945 (Tex. 1998). 37 Ostensible Agency To prove ostensible agency: Plaintiff must have had a reasonable belief that the physician was the agent or employee of the hospital. Such belief was generated by the hospital affirmatively holding out the physician as its agency or employee or hospital allowed physician to do so. Plaintiff justifiable relied on the representation. 38 What about ACA? If the IRS claims physicians are employees, how does that impact Affordable Care Act obligations? Reporting obligations, benefit obligations, etc

14 TAKE AWAYS Review all contract arrangements with 1099 employees. Require signed written agreements using latest precedent, addressing as many of the IRS 20 factors as possible. Attempt to structure fixed assignments /projects. Encourage moon-lighting and other sources of revenue for similar services and bidding for same. Review procedures for implementation to assure compliance. Eliminate right to collect worker compensation and unemployment benefits. Require physicians to bear expenses. 40 TAKE AWAYS (continued) Eliminate right to terminate without cause. Contract with an entity. Use a workforce management company. Watch for federal and state legislation sider impact on DOL and state law issues. Before entering a settlement with the IRS, consider implications of that settlement on non-tax DOL and State agency issues. 41 Summation IRS is auditing hospital relationships that have historically not been questioned like locum tenens. Be prepared to defend those relationships and develop a fall back plan if unsuccessful

15 Questions? 43 Joe Geraci Brian Flood Husch Blackwell LLP 111 Congress Avenue, Suite 1400 Austin, Texas Bert Wolf Husch Blackwell LLP 1661 International Drive, Suite 300 Memphis, TN Bert. Husch Blackwell LLP REFERENCES Administrator s Interpretation No (PDF) 2015_1.htm#3 Rev. Rul , C.B. 296 IRS Announcement IRS Publication 1976, Do You Qualify for Relief Under Section 530,