What Are the Risks of a Startup Misclassifying a Worker as a Contractor Instead of an Employee?

In their quest for flexibility and agility, startups may sometimes misclassify workers as independent contractors rather than employees. Unfortunately, this misstep carries serious legal and financial risks.

This article discusses the risks that startups face when misclassifying workers and the legal, financial and competitive consequences that can ensue. Startups should work with Human Resources professionals or legal counsel to classify their workers correctly and comply with all relevant labor laws and regulations.

Comparing Employees and Independent Contractors

A worker can be classified as an employee or an independent contractor. There are differences between the respective rights and benefits each classification carries.

An employee is an individual hired to perform services for your startup, with you controlling what will be done and how it will be done. Employees have specific rights and benefits, such as minimum wage protections, overtime pay and the right to join a union. As an employer, you have responsibilities, including withholding income taxes, paying Social Security and Medicare taxes, and providing benefits such as health insurance or paid leave, depending on your location and company size.

Independent contractors are self-employed individuals hired to perform a task or service. Unlike employees, you don’t control how these tasks are accomplished; you’re more interested in the final product or service. Contractors typically have more control over their work, provide their own tools and often work for multiple clients. There are fewer employer responsibilities — you’re not required to withhold taxes or provide benefits, and employment law protections typically do not apply.

If you’d like to learn more about the differences between employees and independent contractors, click here. [Link to: Difference between employees and independent contractors]

Legal Consequences of Misclassifying Workers

As mentioned, misclassifying an employee as an independent contractor can lead to significant adverse consequences, which include:

  1. Back Tax Withholding. Employers might be required to pay back tax withholdings, including state, federal and Federal Insurance Contributions Act (FICA) taxes, with interest. In California, this liability typically extends back three years.
  2. Unpaid Minimum Wage and Overtime Compensation. Employers may have to cover unpaid wages and overtime with interest. In California, for instance, this could date back three years for non-willful violations and four years for willful violations. Some states, such as New York, have longer statutes of limitations, up to six years.
  3. Civil Penalties. Employers may face civil penalties for violations of employment laws. For example, California imposes penalties for not providing itemized wage statements or failing to give workers mandated meal and rest periods.

By consulting legal experts to ensure that their worker classifications are accurate and up-to-date with current regulations, this can help avoid costly legal battles down the line. This will also ensure that workers receive the benefits and protections they are entitled to under the law.

The Government’s Role in Creating and Enforcing Worker Classification Laws

Government agencies, such as the US Department of Labor, the Internal Revenue Service (IRS) and state Departments of Labor, are responsible for enforcing worker classification laws. They investigate complaints of worker misclassification to ensure that employers comply with federal and state regulations.

Worker misclassification is taken seriously by government agencies, and noncompliance can result in significant penalties.

Note that government agencies are financially incentivized to identify worker misclassification due to the potential recovery of unpaid taxes and penalties. When an employee is misclassified as an independent contractor, the employer avoids paying certain taxes and contributions, including unemployment insurance taxes and workers’ compensation premiums. By correctly classifying workers, the state can recover these unpaid contributions, which provide critical funding for social safety net programs.

Furthermore, penalties and fines collected from employers who have misclassified their employees can significantly boost state revenue. These penalties can be substantial, particularly in cases where misclassification is widespread within a company.

By ensuring accurate classification, regulators can promote a level playing field among businesses. When businesses misclassify employees, they may gain an unfair advantage over their competitors by lowering their labor costs, which can distort market competition. Given these incentives, many regulators have increased their efforts to identify and rectify worker misclassification, including enhanced enforcement efforts and stricter regulations.


In conclusion, try as much as possible to avoid serious legal, financial and competitive consequences for startups. Comply with all relevant labor laws and regulations. Consulting legal experts can help ensure that worker classifications are accurate and up-to-date with current regulations.

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