Many nonprofits rely on a variety of people to keep the organization running, from full-time employees to summer interns. For federal employment tax purposes, it's extremely important to correctly classify your workers. If your worker qualifies as an employee, you must withhold income taxes and pay Social Security, Medicare taxes and unemployment tax on their wages. For contractors, you do not generally have to withhold or pay any taxes - the contractor is responsible for their own self-employment taxes. Internships are another type of employment classification (usually unpaid), with strict guidelines to ensure the worker qualifies as an intern under the Fair Labor Standards Act.
Blue Avocado recently published an excellent article about classifying seasonal employees, like high school or college students you've hired for the summer. Although you may be tempted to avoid the payroll paperwork by classifying these workers as contractors or interns, these designations actually have very specific requirements that must be fulfilled. To avoid unintentionally violating labor laws, keep these key points in mind.
Not all student workers can be classified as interns. In early 2018, the Department of Labor announced they were scrapping the six-factor test that had been used for years to determine whether an intern is an employee. Going forward, the DOL will use a flexible seven-factor "Primary Beneficiary" test. The new test focuses more heavily on the economic realities of the relationship, and determining who benefits the most. If the worker benefits more than the employer, they can likely be classified as an intern.
Interns must clearly understand there is no expectation of compensation. If you do pay your interns in exchange for their labor, they may be considered employees instead - and therefore subject to employment taxes. While it's not impossible to offer paid internships, you must be very careful to comply with labor laws.
High school students and other minors may be limited in the type of work and number of hours they can perform. Make sure your organization is complying with federal and state child labor laws.
Contractors & Employees
According to the IRS, an individual is an independent contractor if the payer has the right to control or direct only the result of the work, not what will be done or how it will be done. There are three factors that can help you determine the appropriate classification - behavioral control, financial control, and the relationship of the parties.
Behavioral Control - If you can tell your worker when and where to work, what tools to use or supplies to purchase, then the worker is probably not a contractor. Contractors are not provided with detailed instructions, training, or performance evaluations; they use their own chosen methods to deliver an agreed-upon result.
Financial Control - If you have the right to direct or control the financial and business aspects of the worker's job, then the worker is probably not a contractor. Does your worker have the opportunity to make profit (or take a loss)? Are they free to seek out other business opportunities? Are they paid a flat rate per job, rather than an hourly or weekly rate? Unless these factors are present, they are more likely to be considered an employee instead of a contractor.
Relationship of the Parties - If you provide benefits (such as insurance, pension, or vacation pay), and have an expectation that your business relationship will continue indefinitely, then the worker is probably not a contractor. Contractors are usually hired for a specific project or period of time, which is often described in a written contract. But be careful - having a written contract does not automatically mean the worker is classified as a contractor.
The consequences of misclassification are severe. If you've been found to have incorrectly classified your workers, you could be liable for back taxes. The Voluntary Classification Settlement Program (VCSP) offers eligible organizations an opportunity to voluntarily come forward and reclassify your workers as employees with partial relief from federal employment taxes. Before taking on any new workers - especially part-time or temporary workers - be sure to educate yourself about employment classifications and current labor laws.