If you own a company in New York that attains service from freelancers, independent contractors, or consultants, your company may get a notification letter from the New York State Department of Labor (DOL) Unemployment Insurance (UI) Tax Division. It will probably tell you that your business will be subject to a labor audit. Regardless of if you own a small business or large business, any notification from the DOL should be taken seriously. The way that you handle the situation will have a great influence on your core business plan. For example, in California, the popular ride share company known as Uber is under scrutiny for accusations of not classifying employees correctly.
There are many circumstances where the New York DOL will still require audits even if you have properly classified all of your workers. In recent years, there has been a rise in these types of audits in New York. In fact, the New York State DOL administered more than 12,000 labor audits in one year. The best way to ensure that your rights are protected, in the event that you receive a labor audit letter from the New York State DOL, is to hire a skilled New York labor audit attorney. An experienced attorney understands the procedure and can provide business owners with protection during audits.
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Why do Small Businesses Get Selected for Audits?
If your small business was selected for a labor audit, it could be due to numerous reasons. For instance, the New York State DOL could initiate an industry review and select your business for a labor audit randomly. Another reason would be if a complaint was filed from a former worker. However, it doesn't matter what reason your business was selected for a labor audit, the best was to prepare yourself is with the help of a labor audit attorney.
How to Prepare for a New York State DOL Audit
First and foremost, be sure to contact a New York State labor audit attorney. Although you do have the option to represent your business without an attorney by your side, it is not recommended because negative after-effects from a New York State DOL audit can cause other problems for your company. To give you an idea, if a former employee files a complaint for being misclassified, your business could have to issue overtime payment. The most effective way to prove your business practices are compliant with the law is to prepare a solid defense. In addition, there are some business owners who choose to represent themselves and have their accountants with them for aid, but this isn't recommended either because an accountant doesn't have the legal expertise of a labor audit attorney.
It is imperative to begin gathering documents as soon as possible. Many companies find this task daunting because of disorganized record keeping. You should collect payroll sheets and time records that can be extremely vital for your defense. In addition, you can also carry out an in-depth, internal review of your company before you and your labor audit attorney meet with the auditor.
Other Factors to Consider
You should also note that you may not be penalized in the event an employee directly requested a 1099 tax form and labeled himself or herself as a freelance worker or independent contractor. The New York State DOL will review the circumstances and investigate the role of the employee as well as how much he or she was monitored. Another factor that an auditor may investigate is the control and responsibility that was placed on the employee.
Moreover, you are not in the clear because you labeled a worker as an independent contractor. You and a worker may agree that he or she is an independent contractor, but the New York State DOL can still find you in violation if there is sufficient evidence showing otherwise. You can protect your business by learning the laws regarding independent contractors and staying compliant with these laws. You don't want your company facing negative exposure because the New York State DOL doesn't care if you had pure intentions. You could still face a misclassification violation.
Even if your workers signed a freelancer or independent contractor agreement, it is not dispositive. Although it can help your case, it won't dismiss a misclassification violation. The law regarding employee classification is specific and uses facts and a personalized assessment in each situation.
If you are a business owner, you have probably worked diligently for your company to succeed, but your business can be tarnished if you are not properly prepared for a labor audit. We value the opportunity to help our clients during labor audits, and we would like to help you too. Contact us today to schedule an appointment.