Decades of Worker Misclassification Risk Management

The tax and benefit risks associated with contractor misclassification or co-employment are substantial. This is why organizations representing myriad industries and across multiple geographies have been turning to PRO Unlimited for Contractor Misclassification and Co-Employment Risk Management Services for over two decades. Contact Us to Learn More

Origins of Worker Classification

While the need to legally distinguish “employees” from “independent contractors” has existed for hundreds of years, it was not until the early part of the last century that the distinction assumed the significance that it retains to this day. The early driver for this change was the enactment of worker compensation laws, which provide medical care and income continuation benefits for employees, but not independent contractors. The development of the income tax laws and mandatory payroll tax withholding led to further development of methods for distinguishing between the two types of workers, as did the enactment of federal laws governing the workplace—such as the National Labor Relations Act (NLRA) and Fair Labor Standards Act (FLSA)—which protected the rights of employees but not independent contractors.

Each of these sets of laws used their own criteria to test worker classification. For example, the Internal Revenue Service employed a 20-factor common law test for employee status (later consolidated into the 13-factor “Categories of Evidence” test), while the courts developed a six-factor “Economic Realities” test for applying the FLSA. Of the two tests—Categories of Evidence and Economic Realties—the latter is a bit broader in scope than the former. As a result, a worker might qualify as a bona fide independent contractor under the IRS’ Categories of Evidence; however, that same worker might be deemed an employee under the FLSA’s Economic Realities Test. In addition to the multiple tests for worker classification under federal law, each state has multiple tests that are used to apply state laws governing the workplace. Of course, worker classification is a significant issue outside the United States as well, also largely driven by the differing treatment of employees and independent contractors under tax, social benefit, and employment laws.

The complexities of managing worker classification and co-employment risk management necessitates that organizations have the right systems and processes in place to ensure they remain compliant. Download our Solutions Brief on “Worker Misclassification and Co-Employment Risk Management” to get more detail on the various tests for worker classification and how they apply to contingent labor.

Our Independent Contractor Neighborhood

The independent contractor (IC) Neighborhood is PRO’s complimentary content-rich website intended to aggregate, in a single location, all the information talented professionals require. ICs have direct access to a plethora of content that covers issues such as tax compliance, health insurance, contracts, current regulations, enforcement at state and federal levels, paid sick leave laws in specific states and local municipalities, and much more.

PRO only provides access to the IC Neighborhood to workers engaged with PRO clients. To access the IC Neighborhood, workers can contact their onsite PRO MSP program managers or email us at for log-in credentials.

Related Content and Resources

Contractor Misclassification and Co-employment Risk Management

Substantial penalties may apply if your workers have been misclassified or a co-employment scenario is identified. Download the White Paper.

Worker Classification Changes in 8 Western States

A recent Court decision expands worker classification in 8 western U.S. States to include all 13 factors—versus the previous 4—in the economic realties test. This may give rise to higher incidents of worker misclassification in those states. Download the Fact Sheet.

Canadian Worker Classification

While similar to the U.S., Canadian worker classification law is also different—not to mention differences in laws between Province of Quebec and the rest of Canada. Ensure compliance or face the penalties. Download the Fact Sheet.

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