Be Better at Business Podcast

Podcast 1 with Equilla Harper, CPP, First Star HR

June 09, 2019 Eagle Employer Services Season 1 Episode 1
Be Better at Business Podcast
Podcast 1 with Equilla Harper, CPP, First Star HR
Show Notes Transcript

Is your company correctly 1099'ing subcontractors, or should those workers be paid as W2 employees?

We talk with Equilla Harper, Tax Compliance Manager of First Star HR to discuss 1099's subcontractors, W2 employees, and the difference between the two.

This podcast is available on iTunes, Spotify, and more!

Equilla Harper:

You have to be very careful as an employer to make sure that you don't misclassify someone because if you treat them like an employee, but you pay them as a contractor, meaning that you don't withhold the taxes and remit the taxes on the employee's behalf as well as match the taxes. But you're telling them what time to come in. You're telling them what their job responsibilities are on a day to day basis. So really it's like an employer has direction and control. Whereas if you're a contractor, you discuss the task that needs to be done and then you discuss the price and then it's up to the individual that you contracted to get it done.

Mike Smith:

Hello, team Eagle. This is eagle employer services here posting our very first podcast. We were lucky enough to interview Equilla Harper, a CPP up at First Star HR and she was, man, she gave us some great information. I'm your host Mike and this is--

Linwood Smith:

Linwood Smith and man, this is a lot of fun. Looking forward to it. Equilla has a lot of great information. I know you will look forward to hearing what she has to say and how it may concern your business.

Intro:

Welcome to Eagle Employer Services podcast, where it's all about graduating from an employer by accident to an employer on purpose, with a purpose!.

Linwood Smith:

Well, are you about ready to get started?

Equilla Harper:

I'm ready. I'm ready. So I take it, it's gonna be like a dialogue. You're going to ask me a question and we're just gonna talk like I'm sitting there like, it's like we doing in the office?

Mike Smith:

It's going to be very serious and you can't get any questions wrong. Just kidding.

Linwood Smith:

All righty.

Equilla Harper:

Thank you Mike.

Linwood Smith:

Well, Equilla, as we've discussed and talked to a number of, uh, let me start that over.

Mike Smith:

He's scratching his nose here.

Linwood Smith:

I've done that before on TV and they had to edit it all out and start over and come re-film everything.

Mike Smith:

Look at this thing right here. Uh what's on my computer?[Jesting]

Linwood Smith:

Oh, man. Well, as we've discussed before and we've talked to just so many contractors over the years, and I've been a contractor and I've known them and from all of our experiences, one of the things that's common for everyone to use as a 1099 for their employees. And one of the things we run is"Why would I want to go from using 1099 to a W2?" And I guess the first question would be what is technically a 1099 what type of an employee is that?

Equilla Harper:

A 1099 employee is typically a contractor, someone that's hired to do a job, and a price has already been discussed prior to them doing the job. So sort of like a contract, you know, where,

Mike Smith:

And, sorry to interrupt. And really the term"1099 employee," we use it because it's a term everyone uses, but really, they are two different things. They're either a 1099 or they're an employee, but there's no such thing as a 1099 employee.

Equilla Harper:

Correct. Correct. You are either a contractor where you're responsible for paying your own taxes. And typically those that receive 1099 pay their own taxes. But if you're an employee, taxes are deducted from your pay automatically. So, if you get a 1099, that individual is responsible for remitting those taxes to the IRS themselves. Versus, on the other side, where you're an employee, the employer deducts the taxes from your pay and remits it on your behalf. So that's the difference

Mike Smith:

And the incentive to do a 1099 if you're wanting to pay somebody versus a W2 employee is there's a few taxes that are applicable on top of that. Where if you 1099, it's just straight wages. Is that correct?

Equilla Harper:

Well, if you are an employee for an employer, the employer has to match the FICA portion and the Medicare portion of your taxes. So as an employee, when we get our paychecks, we're in the state of Texas. There is no state withholding taxes. So as an employee, we don't pay state taxes, but we do pay federal, and we do pay social security, which is called FICA, and the medicare portion, which is for later in life. Hopefully. If some of us have social security checks, but the employers have to match the social security piece, not the federal piece or the FIT, as people will see that on their paycheck stub, they just match the FICA and the Medicare portion. Whereas, if you're a 1099, you are responsible for all of that yourself. And you do realize that employees that are paying into that social security, the whole purpose of doing that is in hopes of some day retiring and being able to draw social security. But I will tell you the workforce right now is funding the social security checks for the boomers and stuff that are receiving social security now.

Linwood Smith:

Yes. And has been doing that for a while. But regardless when you have a 1099, and he's basically, supposed to be a contract, which means he's not a daily worker. He's not somebody that is directed what to do on a daily basis. Is that correct?

Equilla Harper:

That is correct. Being a contractor, it just means that you're responsible for everything. You know, your own medical coverage. We don't offer you 401K, and dental, vision. You're pretty much there to do whatever job you quoted the employer that you would do. You discuss the job, you discuss the timeline, and you discuss the pay that you want to receive for doing the job. As an employer, when you hire contractors, you are not in control of how the work is being performed. You don't dictate to them, you know, take a lunch, take a break or anything like that because that would be considered an employee. The contractor uses his own tools, provides, most of the time, his own. Um, I guess if it's a job where it requires other workers, he would have his other laborers. So it's totally different from an employee-employer relationship. In an employee and employer relationship. The employer pretty much dictates the job that is done, the time- frame that it needs to be done. And they also offer them benefits whereas you wouldn't a contractor.

Mike Smith:

Are there exceptions to the rule when what you would think falls under that category as an employee would actually be considered a contractor? I know like hair salons and mechanics a lot of times. I guess it's since they bring their own tools, would that would be kind of the differentiator that would make them, I know commonly they are 1099'd rather than W2 employees. What differentiates the two in that circumstance where there is some things that seem to look like they would match the W2 employee model, but you know, they're showing up to a central location every day. You know, a lot of things maybe even dictated the hours yet, they're somehow an exception in the rule. Or are they?

Equilla Harper:

Well, you have to be very careful as an employer to make sure that you don't misclassify someone. Because if you treat them like an employee, but you pay them as a contractor, meaning that you don't, withhold the taxes and remit the taxes on the employee's behalf as well as match the taxes. But you're telling them what time to come in. You're telling them what their job responsibilities are on a day-to-day basis. So really it's like an employer has direction and control. Whereas if you're a contractor, you guys discuss the task that needs to be done and then you discuss the price and then it's up to the individual that you contracted to get it done. Meaning that, you know, you're not standing over them saying, okay, I need you to do x, y, z. That's already been pre-determined, but an employee in the workforce, things change from day to day. If someone's out, you need them to fill in. But that was a perfect example that you gave about the hair salon because a lot of the stylists are contractors. But I do know at a lot of the JC Penny's, which is a department store that has a salon in it, a lot of those salon stylists are actually employees and it's because they choose to be.

Mike Smith:

Depends on the responsibilities.

Equilla Harper:

Yes, it's a benefit for them. They would prefer to be an employee and be paid hourly. And in a lot of cases they want the insurance coverage.

Linwood Smith:

I have one more question. Equilla. I'm sorry, I apologize for interrupting. But is there a situation where your actions overrun your contract? For an example, let's say that you've signed a paper and you are a DBA and you're an individual and you've got your social security, but, it's"Linwood DBA Framer" and so I'd get a check from him every week I get told where to go to work, what time to show up, what I'm doing, and all of the actions that I'm doing. A nd I would get paid a weekly check, based on being told and directed as to what to do. I didn't b id the job. I'm being treated like an employee except for the fact I'm getting a 1099 because I am a subcontractor and I'm being paid as"Linwood Framing." Is there a point where the IRS overlooks that because I'm being paid as"Linwood Framing" versus"Linwood Smith," yet being treated like an employee.

Equilla Harper:

That's a little dangerous. And let me tell you why. You don't hire a contractor to work for you an entire year after year after year. A contractor is basically someone that's bid for a job. Maybe not necessarily bid it, but they are coming in to perform a function that perhaps your employees cannot do. But if you have this person around consistently, then that's a red flag because are they really a contractor or should they really be an employee?

Linwood Smith:

Okay, and then how's the W9 used in relation to a 1099?

Equilla Harper:

The W9 is, I think the best way to to describe it is when you're an employee, you complete a W4. And on that W4 or an I9 you're putting your social security number, etcetera, etcetera. Everything about you so that you can be paid properly. That in essence is kind of similar. That's what a W9 is for a contractor. They are providing us with either their federal ID number that they've received under their business and in some cases people use their socials, but they're providing us the information like their name, their social or their FEIN and the address so that the 1099 is mailed out correctly.

Linwood Smith:

Okay, I see. Very interesting. I didn't know that.

Mike Smith:

The 1099 deal is so common, like in our area, construction is booming. So we're very familiar with it and we know a lot of people just in our, I mean anyone that knows construction knows everyone's 1099'd. And a lot of times I'll hear that there's a W9 used, and I think there's the impression that it adds a layer of protection. I think a lot of times people know they should probably be 1099, but I mean I'm or probably be a W2 employee, but you know, I do the 1099 and I do the W9. It almost feels like there's this impression of"Well if I do all those things. It's like a layer of protection." Is that the case, or no?

Equilla Harper:

No, that's not the case. Again, mainly it's for information purposes. Keep in mind an employer is going to report the 1099 data to the Social Security Administration, just like they are the W2. So when that individual files their taxes, they already know the income that they've made, whether they choose to file or not. And so it's not a layer of protection. It's protecting the employer because if they're ever audited and they want to look at,"let me see all your 1099 people," you know you have the documentation meaning that that individual sat in your office and they gave me that information with the understanding that they are not an employee, that they are agreeing to be a contractor because of the job they had to bid. In a lot of instances what people will do, and I've seen companies that have this issue when we submit the file, the 1099 file, which you have to submit a transmittal, which is the 1096. Once the IRS gets that file, if the numbers meaning the social security number or the FEIN doesn't match the business or the person's name, the file will kick out as a mismatch. And I'm sure you guys have heard about the mismatches on the W2's for social security numbers or there's a mismatch. It can occur with a 1099 as well. And so it goes back to the employer and the employer can be fined and penalized for submitting invalid or mismatched numbers, but they give you the opportunity to get the correct one. And so if an employer is not collecting those and keeping those, you know, they just should. They just should for audit purposes and as well as trying to clean up information when you get those notices from the IRS.

Linwood Smith:

Have you ever heard of an employee, and I know you've been doing this a long time, but have you ever heard of an employee finding out that, you know, maybe they owe a bunch of taxes that they weren't expecting or they weren't prepared for it. They did get 1099'd they agreed to be 1099 contractor, kind of understood what it went through, but of a sudden they find themselves owing a bunch of taxes that they weren't expecting. And when they go meet with an IRS agent or they talk to their tax expert, they say,"Well, explain to me how did you get in this position and are you a contractor?" Is there a form or is there something they report to the IRS to say,"Hey, look, I'm not responsible for all of this. I was an employee even though I signed saying I was 1099."

Equilla Harper:

That's how the audits get started because someone will go in and say exactly something similar to what you said."Oh, I didn't know." But they did know that they were not having any taxes deducted. So I mean, for defense, for the employer; 1.), You have that W9 on file and 2.) You will have in your records where you paid them for whatever job. And you just have to be able to substantiate that regardless of what that individual tells one of the representatives on the government level.

Linwood Smith:

At the government level, would they be interested in finding out what his duties, his daily duties were and kind of investigate it as to determining whether he was an employee or a contractor or would they just kinda let it go from standpoint that, well, this guy's, he couldn't pay his taxes and so he's just trying to put the blame on the employer?

Equilla Harper:

Well, I think they will make a call. Just like when you have employees that file unemployment, they're gonna place a call to the employer in a lot of cases just to, um, you know, validate one way or the other. Now, does the IRS have a lot of resources right, now? No. I mean, what is their criteria for making that call? Because I can imagine they probably get a lot of instances where you have a similar situation. I can't verbatim state if they call on every last one of them. But what I can say is, as an employer, you want to make sure that you have the documentation so that you can show that, if you were audited, you did your due diligence and your due diligence would be talking to that individual. In a lot of cases, if you can have a contract where you're saying, I want you to build this shed I needed and you will have the job done in a month and I will pay you x amount of dollars. It's just good for employers to have documentation of whatever agreement that they made with the individual to cover themselves.

Mike Smith:

I know with Sterling, the large staffing company, I don't know if you involved with this decision or not. But, like with ACA reporting and they were looking at the cost of, okay, do we do all this reporting stuff where we calculate who's eligible versus who's not. And then we develop an expensive formula with lawyers to sign off on it and blah, blah blah. Or, and I know the ultimate decision was to dot our i's and cross our t's. It's actually gonna just be cheaper if we offer it to everybody and do it that way. Could you foresee a similar situation where to really sleep good at night, if you have subcontractors that maybe legitimately are or are it's gray area, but to really qualify you're going to have to do all the things you just mentioned, each job, each this, each that, the other, records. Where if they're an employee, some of those expenses go down. Is there a scenario or is it always cheaper to just 1099 everybody? Is there a scenario where you know, to do it right, it would cost as much money to just make them a W2 employee and I'm not liable for the reporting?

Equilla Harper:

Well I think it just depends on the business structure. Like, let's just take construction companies for example, that typically work by project. They're project driven and then a lot of times they have seasons where the work is not, they don't have a lot of work. So there's, there's a flip side, in each employer would have to look at their situation because let's just say if you did offer it to everybody, just to be safe, make everybody an employee, keep in mind there are a lot of employer taxes and when the work is not available, those individuals are going to go and file for unemployment. And so when they go file for unemployment, you are paying unemployment taxes, but because you have people filing unemployment, it could potentially make your unemployment rate go up. So it increases the employer's liability. So I would say, you know, as an employer just, which of course we can't give legal advice, but yeah, look at how much revenue you're making.

Mike Smith:

It is more expensive to have an employee. But the way we do things here, and I think this has been our approach, and I think it's the best approach. It's always cheaper to do it right.

Linwood Smith:

Well even if you have a lot of jobs, you have a core group of employees that work for you all the time. And if you're 1099'ing them, then those should be W2 employees. If you've got a group that they do a job for you here and they're off and they're off doing a job for somebody else and then if you're not busy, they're not working. Those are 1099 contractors. It's real simple. But if you've got a core group of people that work close to you and they work for you every day and you send them out, those are employees.

Equilla Harper:

And that's how the government will probably look at it, you know, the federal agency because here's what they're looking at. I agree with what you said. They're looking at, is this company trying to avoid paying taxes? You know, like you said, if they work for you all the time and you count on them and they're your core team, they should be employees. But if it's like someone with a specialized trade and you only need them periodically, I would say they could potentially be a contractor. But if you choose to make anyone a contractor, just make sure you dot your i's and cross your t's by having that W9 and having the agreement of what you and that individual decided needed to be done. And what's your opinion

Mike Smith:

And the history of all projects?

Equilla Harper:

With that individual, yes.

Mike Smith:

We talked earlier about a trigger, or a situation that could trigger an audit where like an employee owes taxes. They're talking to the IRS and they say, you know, anyways, we talked about that. Are there any other triggers, or, are there any other situations that you know of that could trigger an audit? For instance, if an employee has one 1099 from one person for all their wages or if it's a majority of their wages even, or year after year like, is that a situation that could trigger an audit from the IRS? Say this doesn't look like it's an 1099 contractor. If they only have one 1099? I don't know. Is that a situation that could trigger an audit or or do you know of any other situations

Equilla Harper:

When it comes to 1099, typically the person cannot be both an employee and a contractor. In most cases that's a red flag.

Mike Smith:

What if they were only a 1099, say I'm working for Eagle and year after year Eagle 1099's me. I'm not a W2 but year after year I get 1099'd and when I submit my taxes, 100% of my wages are from, or, not wages, 1099 earnings or whatever you want to call it. If I submitted my taxes with one 1099 from one company year after year, could that cause a red flag in their system to trigger an audit?

Equilla Harper:

Yes, I would think so. It depends on what type of company it is. Because it's like what we talked about earlier, it's the consistency, you know, if you aren't constantly, if you're going there 365, well not 365 days a year, but if you're working 52 weeks out of a year with the same employer or same business. You know, they will look at first what type of business is it?

Mike Smith:

Okay.

Equilla Harper:

And two, that just doesn't, that just doesn't add up.

Mike Smith:

I've always wondered, you know, I know what's a 1099. I don't know it to the T, but I know when there's someone that's blatantly an employee and they're being 1099'd but you know, the problem is so, so many of these good, you know, the people that want to do it right. They see all these people around them doing it and no one's getting audited. Do you think the IRS looking at the industry and that kind of being an industry norm, I've always wondered how do none of these guys get audited. I will say, it happens, it's, rare, but it would be me.[Linwood[ It would be the one that would get audited. How do you explain that? What to me seems a little bit like a phenomenon like, well, if it's wrong and everyone's doing it and no one is, or very few are getting audited and panelized[inaudible] I have a hard time wrapping my head around that.

Equilla Harper:

Well, look at it this way. Mike, if it's construction, if it's a roofer, we know without a doubt that they will not consistently work all the time because there will be slow times, there will be, there's the winter, you know, where you're not going to be on the roof if it's snowing or if there's ice on ground. And so that's why I say that they look at the industry, but if there was a barber, you know, or if it was a doctor or nurse, you know, which they're 1099'd, a lot of them. Cause they do temp, I'm just trying to think of a good example, but if it's anything that you are consistently doing, probably a nurse when getting, you know, they wouldn't even look at that much because a lot of'em, they don't want to be employees. They want to go from location to location. They enjoy doing that. But let's say our company, if it was a staffing company, you know, probably not. Because you are going to that staffing office who has direction of control of where you go next.

Linwood Smith:

Well, it sounds like to me there's room for these guys to 1099 people that do work for them inconsistently. But like you said, because of the fact that they work inconsistently, it verifies that they are 1099 contractors, even though maybe technically they're having them show up at work early and they're giving them their hours. The other side of it is, it's not regular work. And so there is a sense of a rationale that goes into"can I enforce this being 1099 subcontractor versus being a W2 employee."

Equilla Harper:

Right. Because you know you're going to have a period where you don't have anything for them to do. So what are you going to do? Lay them off?

Mike Smith:

Yeah, I don't want to come across to anyone listening like, hey, you should never 1099 and all this, the best way to succeed longterm is to do it right. And that's our goal here.

Linwood Smith:

Thank you Equilla for being with us today.

Equilla Harper:

It was a pleasure to be with you guys. I mean ultimately my goal and the reason why I do what I do is one, I enjoy it and then I like helping people and like you say, there's a little work on the front end but it pays off on the backend a lot.

Mike Smith:

We've seen it week-in, week-out. We've seen you, we work with you. I don't know if the listeners know we work with Equilla in what we do here at Eagle Employer Services. She's a part of our corporate team. You're the CPP. Yes. And, man, she, she just incredibly brilliant. If you'd like for her to be on your team, you're welcome to join us. Or if you have a question about a 1099 person. Say,"how do I do this right?" We're also available to come talk to us. If you want to use us, great. But if you say, hey, I know Joe Guy over here, I'd like to turn this guy into a W2 employee, but I'd like to use someone else. That's great too. We just want to feed you good information and be a support system, and, Equilla thank you so much for helping us out today, our very first podcast. Hopefully it's a huge success and it'll be like an honor to say, I don't know about that though, but you never know.

Linwood Smith:

Well, you are our first guest and it was unanimous. We said that Equilla has to be our first guest, so thank you so much.

Equilla Harper:

Well, thank you guys for having me. I really, I feel honored and I was more than glad to do it for you. Anything we can do to keep people compliant out there, I'm for it.

Linwood Smith:

Amen. And equilla have a great vacation.

Equilla Harper:

Thank you so much.

Mike Smith:

All right. We'll talk to you soon. Thank you everybody so much for watching. If you enjoyed this video, please like follow, subscribe, whatever platform it's on. We're going to have it on a bunch. We really appreciate it. We look forward to providing more great material with you in the future and remember be better at business with team Eagle!