ASA Central Network

  • 1.  1099 employees vs W2

    Posted 01-23-2023 17:42
    Have anyone used 1099 employees for Temp-To Perm contracts?  If so, what are your pros and cons?

    Gale Parker
    A1 Staffing & Recruiting Agency Inc.
    (800) 233-1261
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  • 2.  RE: 1099 employees vs W2

    Posted 01-24-2023 08:29
    Gale - great question!  

    We exclusively staff W2'ed employees, but I've seen this question come up a number of times.  You need to be VERY careful when considering utilizing 1099 as a vehicle for employing your associates.  There are a number of articles and posts about this, so I'd suggest doing your homework to make sure you don't accidentally get into an issue of misclassification.  There have been lots of firms that run into misclassification issues, so the enforcement here is quite consistent/strong.

    As a quick "litmus test", you should consider the status of the employee when they are hired by the client.  Would they be a W2ed employee for the end customer?  If so, the chances are you shouldn't/can't 1099 the associates while they are on your payroll.  I know there could hypothetically be exceptions to this rule, but its a good quick check.

    Jason Leverant
    President & COO
    Atwork Group
    Knoxville TN
    (865) 824-0021
    Certs: TSC, CSP, CSC, CHP

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  • 3.  RE: 1099 employees vs W2

    Posted 01-24-2023 08:39

    Good Morning,


    The federal government, as well as many state agencies, have targeted 1099 contract workers and those who employ them.  During the COVID 19 pandemic the government realized how many people were operating outside of the basic protections afforded to w2 employees by becoming 1099 contractors; a status that can offer greater flexibility but affords the contractor fewer protections such as unemployment and discrimination protections.  Although neither the contractors, nor their employers, had paid into the Unemployment Insurance system for those workers, many were still afforded those unemployment paychecks to protect their families, their livelihoods, and, frankly, our economy as a whole.


    As we are working our way through the COVID 19 crisis, renewed emphasis has been placed on ensuring that these folks are correctly categorized and UI taxes paid.  The federal and state government agencies can use different tests to determine if your contract worker should be considered a w2 employee, and the penalties for misclassification are severe.  Moreover, even internally the government isn't consistent with its findings as the DOL and IRS can have two different determinations for the same worker.


    I would advise you to look at the appropriate federal and state tests to determine the proper categorization of the employee.  Do they operate with autonomy?  Are they free to apply their skills to other clients?  Do they have their own LLC, insurance, and tax history demonstrating how they have, essentially, their own consultation services rather than report to work for one company, on their schedule, take direction, and perform as directed like a w2 employee would. 


    The IRS and DOL have been clear in expressing their mandate to move many workers from salary exempt to hourly non exempt, and ensure that the protections due w2 employees are being offered appropriately; no side-bar discussions with an unwary contractor offering a slightly higher rate in exchange for abandoning the protections of w2 status for 1099 contract work. 


    That said, if you can prove that your 1099 associate operates with the proper autonomy in providing a service to a client company, there is no reason why the duration of such an arrangement should be called into question.  However, if your associate is doing the same or similar work to the client's employees, lacks the autonomy to complete their assignments at their discretion, and depends solely on the work for this client as the basis for their income, then the odds are that your 1099 associate will be reclassified under scrutiny from the DOL and IRS; and a hefty fine will be levied to drive the point home. 


    As inflation rises, corporate profits have skyrocketed; leaving the average worker with less buying power than before.  Several agencies, including the IRS, DOL, and the judiciary, have renewed their commitments to support the covenants of the Fair Labor Standards Act; ensuring workers are compensated properly and enjoy the protections of employment law.   



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  • 4.  RE: 1099 employees vs W2

    Posted 01-25-2023 09:52
    Gale - You have great information above, I would recommend that you always consult with your legal advisors for any contracts liek this.

    Here is a webinar that you may get some information in regards to this exact question:

    Michael Bartels
    Chief Development Officer
    Becker LLC
    New York NY
    (973) 251-8905

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  • 5.  RE: 1099 employees vs W2

    Posted 01-27-2023 10:09
    Hi Gale - if you follow any daily newsletters like SIA's daily briefing or ASA emails, every few weeks there is an article about a staffing firm getting hit with 1099 misclassification. These are extremely expensive and reputation damaging actions. 1099's are not "employees" by definition. If you are calling them "1099 employees" in layman terms, that is probably a sign they should be classified as W-2.

    Competent legal counsel can run you through the testing to determine whether individuals you are paying should be W2 or 1099.

    Sean Barber
    Pluto Healthcare
    Columbus OH

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