RAQs: Recently Asked Questions

Topic: Hiring 1099 Contractors - 12/13/2021
We are thinking of bringing on a 1099 contractor. What should we be aware of? ...
Posted: Monday, December 13, 2021 Permalink


We are thinking of bringing on a 1099 contractor. What should we be aware of?


Many government agencies provide guidance on hiring a 1099 or an employee, and the guidance is centered on the direction and responsibility of the worker and control of work to be done. The first step is knowing the difference between a ‘contractor relationship’ and an ‘employee relationship.

On one end of the continuum, you have a painter coming to paint your house. You review an estimate, sign a contract, tell them what color you want, what to paint and the rest is handled by the painter or painting company. This includes methods, paint, supplies, and even expenses which are often accounted for in the bill you receive once the project is completed.

The above is a true 1099 contractor relationship. Direction and control lie with the contractor, as does the risk of profit or loss.

Employee workers are oriented and subjected to your company policies and total direction on when and how the work needs to be completed, trained, provided supplies and workspaces, and reimbursed for business expenses and travel. Your employees are paid an agreed upon wage regardless of how well the organization does financially. The direction and control over the work lies with the employer, as does the risk of profit or loss.

In our example, the painting company owns financial responsibility for the work and the employment relationship with the workers that paint your house.

Additionally, the protections, rights, and benefits an 'employee' receives would not be available to a contractor to do the same work. That presents an obvious problem in the view of the DOL, IRS, Worker's Compensation, and EEOC. The government agencies vested interest in ensuring worker’s rights are properly protected makes this a high-profile topic that is very much on their radar.

To determine if you need a 1099, evaluate the work that needs to get done. Is it core to the mission of the organization, long-term, and being done by a current employee? If yes, that role that should be classified as an employee.

Unfortunately, there is no ‘catch-all’ provided by governing agencies to help with classifying your workforce. The guidelines for the IRS and DOL can be found here;

IRS: https://www.irs.gov/businesses/small-businesses-self-employed/independent-contractor-self-employed-or-employee

Federal DOL: https://www.dol.gov/agencies/whd/flsa/misclassification

The following includes some key guidelines that will help ensure you are classifying your workforce correctly. The more statements that apply below indicate that your worker is likely an employee:

  • Perform work that is core to the business or mission
  • Perform work that others are already doing in the organization
  • Are paid a set hourly or weekly rate
  • Are trained by the organization
  • Receive all supplies, work resources, tools, and spaces from the organization
  • Are under supervision by a staff member
  • Receive expense reimbursement
  • Do not have a business or work with other businesses

The most risk-averse method of hiring a worker is as an hourly employee. Stepping away from this classification with a worker should be an exercise in ensuring the work relationship fits the guidance given for a ‘contractor relationship.’

A good rule of thumb in any employment situation is to err in favor of the worker. In the case of uncertainty about worker classification, classify as an employee.

Tags: 1099, Employee Rights, Hiring Practices

Topic: Pre-employment background checks - 12/13/2021
We are considering pre-employment background checks. What should we know when instituting this pro...
Posted: Monday, December 13, 2021 Permalink


We are considering pre-employment background checks. What should we know when instituting this process?


To implement a background check process on potential hires, you’ll want to avoid workplace discrimination issues by establishing proper notification steps and by taking the following into consideration.

Prior to instituting a background check program, an employer must be able to demonstrate a connection to the work being done. A clear connection to the work of the employer or of the role needs to be determined.  What are you concerned with in someone’s history relative to the work they will be doing? A clear example of this is checking the sex offender registry for those working with children.

Additionally, the checks must be run consistently. Every prospective employee for the same or similarly situated role or job class should be undergoing the same checks. If the connection to work is being drawn – all roles connected to the work that is justifying the check should be included in the process.

A proper background check process begins with the offer. An employer using a pre-employment background check may only start the background check process after a conditional offer is made to the prospective new hire.

To do the check, the prospective new hire must complete a release form which is commonly provided with the offer letter and include the following notices:

Any information that is obtained in the process of running the check must be evaluated in light of the situations surrounding any found convictions as outlined in NYS’ Article 23A. Background check considerations should be treated on a case-by-case basis and, if results are found, evaluated on their own merits adhering to NY Article 23A guidance.

If a candidate’s conditional offer is rescinded based on the results of the background check, a Pre-Adverse Action Notice must be issued to the candidate giving them 5 days to dispute the results. This notice should include a copy of the report, contact information for disputes, and copies of the FCRA and NY Article 23A.

After 5 days, the employer may send an Adverse Action Notice finalizing the rescinded offer.

There are many background checks services able to provide electronic delivery of release forms, results, and consult on necessary notices. A good background check partner will also have knowledgeable representatives that will help you with understanding results, if necessary, and ensure you have a solid, compliant process.

Tags: Background checks, Hiring Practices

The WNYLRC's "Ask the HR Expert" service is available to members of the Western New York Library Resources Council. It is not legal representation of individual members.