Analyzing to Risks of Using 1099 Construction Workers

Originally published by: Journal of Light ConstructionOctober 9, 2015

The following article was produced and published by the source linked to above, who is solely responsible for its content. SBC Magazine is publishing this story to raise awareness of information publicly available online and does not verify the accuracy of the author’s claims. As a consequence, SBC cannot vouch for the validity of any facts, claims or opinions made in the article.

Many contractors are using what are referred to as "1099 workers," to avoid employee- and payroll-related administrative responsibilities and financial costs.  Some use this tactic to reduce their costs to help win bids and or make more money. If you never get caught, you may feel or believe it was worth it. On the other hand, if you get caught, whether you knew what you were doing was illegal or you really believed what you were doing was OK, the financial and litigation-related costs can kill your business. The chance of this happening has dramatically increased in certain areas of the country because Washington is offering money to states to help them with enforcement. Read on to find out about what is already happening in Virginia.

In an article by Courtney Malveaux of Thompson McMullan PC, Courtney shares a scary story where a GC jobsite is inspected by Virginia’s version of OSHA, which makes an on-site determination that certain “Independent Contractors” were actually employees, triggering the automatic loss of any ability to negotiate violation penalty reductions. The story gets much scarier as you read on; I suggest you read the whole article.

“Under the new policy, if the inspector declares that your contractors should be considered employees, watch out.  You’re paying full freight on each penalty, without exception.  Your only recourse would be legal action.” Courtney Malveaux

Guilty until proven innocent

The part I found most scary in the story was that the contractors who take this risk, for whatever reason they use to justify doing so, are automatically assumed to be guilty by the inspectors.   If that happens to you, it means you are guilty until proven innocent—at your own expense. And, even if you eventually win your legal battle, you are not entitled to receive any damages for your challenges. So your legal fees cannot be recouped.

That means you have to pay up any fines, at their full rate (anywhere from $7K to $70K per violation) right away. Then you have to decide if you are willing to wait for your legal case to make it through a legal system sponsored by the same entity that is accusing your business.

Collateral damages may be unavoidable

From what I have witnessed, I know the story can go even further than explained in the article. For example, if the 1099’s are deemed to be employees, you may also become responsible for all employment-related taxes on all the money you have paid to them to date, plus fines, of course. The same may happen with Workers Compensation and general liability insurance coverage. Again the likelihood of these things happening has also increased. For example, in Massachusetts, several different state departments are participating in a memorandum of understanding, committing to refer observed violators discovered by each department to the other departments. In a 2012 article, I reported on how OSHA and EPA have done the same regarding RRP Inspections.

The Bottom Line

As a business owner, only you can decide the level of risk you are willing to take on by avoiding employment responsibilities. I recognize by doing so you may be saving your business and your customers money. At the same time, by doing so perhaps both of you are preventing a worker, or many workers, from having the employment rights and benefits your customers expect and even demand at their own jobs. Some know they are doing it. Some, I hope, just found out.

Click here to read the original article.

Shawn McCadden founded, operated, and sold a successful design/build company. A co-founder of the Residential Design/Build Institute, he speaks at industry events and consults with remodelers about owner issues, management, lead paint regulations and other industry issues. 


Check out this extra section in each digital issue of SBC Magazine for additional news, perspective, and advertiser content. Learn more and access 2016-2017 archives here.