Blog Post

1099 “Employees”? Workers’ Comp; Yes or No?

  • By Dennis Slabaugh ARM, CRIS
  • 14 Feb, 2019

In  my interviews with clients during our forensic risk and insurance review process, I often here the term “employee” connected to the reference of IRS form “1099”. In most instances this is not used as a cliché but it is often meant to categorize statutory employees who are paid without employment taxes considered and other statutory requirements that come attached to “W2” employment.

Someone who performs services for you is either an Independent Contractor, (requiring the filing of Form 1099 by the receiving business) or they are an employee. This is pretty straight forward as far as the IRS is concerned even though so many businesses do not pay closer attention to the rules which determine if someone is an independent contractor under those IRS rules:

The first test:

Behavioral Control covers facts that show if the business has a right to direct and control what work is accomplished and how the work is done, through instructions, training, or other means.

Financial Control covers facts that show if the business has a right to direct or control the financial and business aspects of the worker's job. This includes:

·        The extent to which the worker has un-reimbursed business expenses

·        The extent of the worker's investment in the facilities or tools used in performing services

·        The extent to which the worker makes his or her services available to the relevant market

·        How the business pays the worker, and

·        The extent to which the worker can realize a profit or incur a loss

 Relationship of the Parties covers facts that show the type of relationship the parties had. This includes:

·        Written contracts describing the relationship the parties intended to create

·        Whether the business provides the worker with employee-type benefits, such as insurance, a pension plan, vacation pay, or sick pay

·        The permanency of the relationship, and

·        The extent to which services performed by the worker are a key aspect of the regular business of the company

So, that 9-5 worker that does not have a written contract for their work and who does not pay any expenses of their work or employment, does not have control over their own “profit or loss”, incurs no expenses and does not make their services available to other businesses, is probably an employee, not an independent contractor.

Now that we know the person you are not withholding any employment taxes from is likely not an employee,   and even if you are able to convince the IRS that this person is not an employee for tax purposes, you need to apply a second separate set of rules to determine if this paid helper is not a statutory employee under Workers’ Compensation statutes. (in this case based on Florida law)

 Second Test: (From Florida Statue 440,)


In order to meet the definition of independent contractor, at least four of the following criteria must be met:

 (I) The independent contractor maintains a separate business with his or her own work facility, truck, equipment, materials, or similar accommodations;

 (II) The independent contractor holds or has applied for a federal employer identification number, unless the independent contractor is a sole proprietor who is not required to obtain a federal employer identification number under state or federal regulations;

 (III) The independent contractor receives compensation for services rendered or work performed and such compensation is paid to a business rather than to an individual;

 (IV) The independent contractor holds one or more bank accounts in the name of the business entity for purposes of paying business expenses or other expenses related to services rendered or work performed for compensation;

 (V) The independent contractor performs work or is able to perform work for any entity in addition to or besides the employer at his or her own election without the necessity of completing an employment application or process; or

 (VI) The independent contractor receives compensation for work or services rendered on a competitive-bid basis or completion of a task or a set of tasks as defined by a contractual agreement, unless such contractual agreement expressly states that an employment relationship exists.

   If none of the criteria listed in  the sub-subparagraph above do o not exist, an individual may still be presumed to be an independent contractor and not an employee based on full consideration of the nature of the individual situation with regard to satisfying any of the following conditions:

 (I) The independent contractor performs or agrees to perform specific services or work for a specific amount of money and controls the means of performing the services or work.

 (II) The independent contractor incurs the principal expenses related to the service or work that he or she performs or agrees to perform.

(III) The independent contractor is responsible for the satisfactory completion of the work or services that he or she performs or agrees to perform.

(IV) The independent contractor receives compensation for work or services performed for a commission or on a per-job basis and not on any other basis.

(V) The independent contractor may realize a profit or suffer a loss in connection with performing work or services.

(VI) The independent contractor has continuing or recurring business liabilities or obligations.

(VII) The success or failure of the independent contractor’s business depends on the relationship of business receipts to expenditures.

c. Notwithstanding anything to the contrary in this subparagraph, an individual claiming to be an independent contractor has the burden of proving that he or she is an independent contractor for purposes of this chapter.

Hmmm… what difference does all this make? Well, if you have two regular employees and decide that you will not obtain workers’ compensation as you are only required to secure that coverage if you have more than 3 employees, and it turns out that your three independent contractors are actually statutory employees, you face fines and stop work orders from the Division. I have known more than one restaurant to experience this problem on a Friday afternoon and unable to resolve it until several business days later. And even worse than lost business income and fines, what if one of those presumed independent contractors suffers a catastrophic injury on the job and you have no insurance coverage to respond to hundreds of thousands of dollars  worth of benefits  due and owning? Then consider just the legal costs of a litigated claim from that independent contractor after a minor or alleged injury. Costly indeed.

I know that many times the motivation for “1099” employees is to avoid the requirement for withholding and for securing and or paying for workers’ compensation insurance.  This decision is very risky, and comes with the potential to be financially devastating.

Think twice and obtain competent advice.

By Dennis Slabaugh ARM, CRIS 07 Aug, 2019

Another major governmental agency made the headlines locally among the mounting number of organizations falling  victim to cybercrime or other forms of data breach or system intrusion. While the small time phishing emails continue to flood our mail boxes, serious hackers are making off with billions of dollars all around world. The City of Naples last week was caught in a type of social engineering where someone posing as the legitimate recipient of a large payment for construction services whisked away $700,000 of city construction funds into a hacker’s bank account instead of the account of the contractor performing their work.

Many business owners have resisted the idea that they are vulnerable to losing significant amounts of money as a result of cybercrime or data breach. “We don’t process any payment information. We don’t collect any sensitive personal identifiable information. We don’t use electronic funds transfer. Our IT professional has our system locked down tight.” While many of these statements may be true, it is just a matter of when, not if an event occurs. Unless no one is using your system internally and no one is using your system externally, you can be a victim due to just one mistake or error by one user or employee on your system. If like many small businesses you outsource your IT work, are they really as good as you believe them to be? Some forensic experts tell us that many IT “pros” actually have created more vulnerability than you may be aware of. After all, that industry is wide open from a credentialing standpoint. Remember, it is not If you are attacked, it is only a question of When.

It is time to rethink the cost to your business of something as small as a single record data breach, a full lock down ransom ware demand, or the draining of your payroll account on a Friday afternoon of payday. The cost to hire forensic consultants (and find them timely), the lost business income from even a day or two of lockdown, or the cost to notify and provide credit monitoring of your entire data base for the next two years is best transferred to an insurance carrier for a known fixed cost (premium).

Coverage has never been broader, and premiums have never been lower. You can now obtain a proposal and obtain coverage in less than 15 minutes with less than a dozen underwriting questions. The cumbersome application and approval process has given way to sophisticated underwriting and pricing algorithms for less cost that you may have thought.

Send us an email and we will send you a direct invite to the quoting platform that will allow you to enter basic information on your own and obtain a proposal and issue a policy in less than 15 minutes. Minimum premiums start at less than $700.

By Dennis Slabaugh ARM CRIS 21 Mar, 2019


 

As I drove home from my third non- profit board meeting of the month, I had a moment to reflect upon this past Friday “crunch day” and the final results we delivered today to a new non-profit client we secured with a cold call two weeks ago. A mission of rescuing and sheltering female victims of human trafficking is a cause that anyone can appreciate. I believe that call was more than a chance at obtaining a new client and additional revenue for our office. Just as the risk manager within me won’t allow me to walk away from a spill on the floor of the grocery store, the call I made to this organization must have been rooted in a desire to reach out and help them (in this case to improve their workers’ compensation program and conserve some of their precious money). With time and information NOT on our side as I preached several weeks ago, we still made it happen and they are very grateful.

 

Many non-profits don’t have the resources to engage high level advisors, attorneys, accountants, business developers, etc. This can impair their growth and halt them in their tracks if they don’t get that critical support or counsel. By serving them as a target client, and understanding their needs as a business but more importantly as a cause-driven organization, we are able to maximize our value as an insurance advisor that they can count on. Many times, they are surprised to learn they needed our expertise more than they realized. The end result is a much more stable and mission successful organization. And for us, fulfillment that we are serving them with a purpose beyond the monetary value we receive. It truly sets the stage for us to serve these humanitarian angels outside of the office as well.

 

I am blessed that my partner (as well as my lovely wife) has a heart of gold and years and years of hands-on experience as a non-profit administrator. She has taught me not only how to give more to receive more, (more in this and most other cases is gratification) but to make the time to get involved even when you think you have other priorities. The mental trade off of giving up work time (which as a small business owner comes without a paycheck while out) for charitable purposes has always haunted me. But as I have matured and served, it has become much easier and certainly more fulfilling than going home early to sit on the couch and watch TV. I still somehow find time to enjoy my craft of cooking a nice meal for the two of us each evening and feeling very good about the day and its successes as we sit down and thank God for another great day.

 

If you have been putting off that invitation to serve, regardless of the cause, get off the sidelines as I have finally done, throw your hat in the ring and get involved. You will be glad you did and those that you serve will receive exponential value from your generosity and your time.

By Dennis Slabaugh ARM CRIS 08 Mar, 2019

We have been looking to hire a key employee recently and I know what I am looking for when it comes to experience and qualifications. In the title question I pose here, I am not talking about semantics. It really is a question that needs to be considered to ensure a mutually beneficial long term relationship between the employer and the employee.

The obvious starting point is to determine what your expectations are of the best qualified prospect. Qualifications are easy to identify and define, but to determine and define the qualities of the right prospect is much more difficult but much more important.

As we sift through the applicants that indicate they have 5 years of commercial and customer service experience, we have our pool of the best qualified. Now keep in mind that applicants can be pretty creative when it comes to describing their experience that meets this 5 year criteria. Beyond this hard statistical data, the difficulty comes with figuring out who matches that magic definition of “right”.

For our operation, the criteria for the right employee includes the following:

1.      More excited about starting the work day rather than finishing it

2.      Passionate about the business (Insurance)

3.      Confident in their current abilities

4.      Confident in their ability to grow and learn

5.      Open and willing to listen and be mentored

6.      Thirsty for more; not satisfied with “the way things are”

7.      Willing to challenge, question and drive improvement

I have intentionally left out the “warm and fuzzy” stuff. Yes, finding a candidate that fits our culture and shares our values is important, but that is a given; they must be comfortable in our shoes as well as their own and that is an easy read right from the first interview.

Now the biggest challenge is determining who has these qualities and attributes among those that have the qualifications. Currently we are using a series of questions and “challenges” to gauge the depth of the candidate’s thirst for acquiring more knowledge  and expertise as well as their progression of growth through the course of their career in our business. We are looking forward to the next few years as we measure the success of having chosen the Right candidate, not just the best qualified.

By Dennis Slabaugh ARM CRIS 22 Feb, 2019

Business Insurance Online: Is it right for you?

There are many online business insurance platforms available for those owners that are tech savvy and comfortable at the keyboard. I recently blogged about buying auto insurance online and now it is time to evaluate the purchase of business insurance through one of the most popular online purveyors of that coverage.

This particular insurance company also partners with wholesale brokers and those brokers make the platform available to licensed agents essentially offering agents (like us) a market for placing their small business clients. The platform is identical to that which a business owner would access except that the branding of the quote has the agent’s contact information so that when the quote is presented to the client, they are directed to me to finalize the quote and issue of the policy.

The good news is that the information required is minimal. The issuance process is quick if you are able to provide a credit card number for either a monthly re-occurring credit card transaction, or one annual payment. No checks in the mail here….

The bad news is, you don’t have an opportunity (other than the “14 DAY FREE LOOK” period) to review the actual policy form / exclusions / endorsement prior to saying “yes”. While the endorsements are few which is a positive, you cannot get an advance copy of all of the policy terms and provisions and endorsements prior to issuance of the policy. It has been my experience that for most owners, they are not much interested in all that “technical” stuff anyway. That is where we come in. Our forensic review of their risk exposures and how well their current policy  (in this case, bought online / simple issue) or our proposed insurance policy matches those risks determines in most cases, the owner should care about that “technical stuff”. It is that stuff for example that excludes the coverage for the recent claim that was denied unbeknownst to them.  And that stuff is where you learn that the deductible is on a per “claim” basis not per “occurrence”. (10 cars damaged by contractor’s overspray = 10 $1000 deductibles or $10,000!) Or your contractor’s liability policy excludes work you do on multifamily properties. And the list goes on……

So what is your beef Dennis if it is easy to apply for and simple to issue? Well, after attempting to provide the up-front review of coverages prior to recommending what appeared to be a pretty decent policy of coverage at a decent price through this platform, I spent 3 hours and 5 phone calls to this “direct” to you insurance company only to learn that they were not able to provide me a copy of all the exclusions and endorsements without actually purchasing and issuing the policy! I gave up. I knew that I was not going to propose an insurance program with my name on it if I was not clear and certain what is covered and most importantly, what is NOT covered. End of story here for me.

Stay tuned. Later this year Berkshire Hathaway Insurance Company and it’s owner Warren Buffet who brought us the green lizard that saves you 15% for online auto insurance, promises to deliver an online business insurance solution that combines all coverage in to one single policy: General Liability, Business Auto, Business Property and Workers’ Compensation in one less than 5 page easy to read policy!  The claim is it will be at least 15% cheaper than separate policies bought through an agent. Quite frankly, I believe our expertise, experience and delivering business peace of mind© is worth 15% and so do our clients.

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  • Excess liability policy that excluded some of the types of work they perform. No coverage over auto liability policy. Replaced
  • General Liability policy that excludes primary work they perform and rated improperly for 10% of actual payroll. Replaced with no exclusions of their type of work.
  • Workers’ compensation:
  1. Missing Safety Credit. added
  2. No drug free workplace credit offered. In the process of implementation
  3. Missing experience modification factor of 19% discount
  4. Payroll estimate not updated at renewal by over 100%
  5. No “pay as you go” option offered. To be added at next renewal
  6. No dividend plan added at renewal for potential 27% return (no claims through 9 months) To be added at next renewal
  7. No assistance with $20,000 audit dispute from prior year. Successfully challenged 
  • Business auto policy rated up so high that proper limits unaffordable. Carrier change and increased limits to $1M for the same premium and included physical damage on 18 additional vehicles
This sounds like a pretty good year of successes for many of our clients. It would be for sure . But in this case, these are the results for just ONE client in less than 4 months! The point I am trying to make is not to boast or brag, but to illustrate the value of knowledge and experience and applying it to the benefit of the client. All of this work was done without being compensated as the incumbent agent. The motivation was truly for the sole purpose of helping a business owner not only to save money, but more importantly to protect the viability of his business and not pay any price for coverage that fails to protect their risk of loss.

I can be certain you likely trust your professional advisers, but can you count on them to ask the right questions of the insurance carriers, brokers or underwriters while understanding your needs and how to properly protect your business? Forty years of experience and technical lessons for learning, translates into business peace of mind.

Our promise is to treat our client’s money as if it were our own. That is a promise, not just s slogan.
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