## Independent contractor misclassification in Virginia Workers misclassified as **1099 contractors** lose substantial rights. Employers misclassifying face penalties from multiple agencies. ### Virginia test Federal economic-realities + Virginia Employee Misclassification Act (2020). ## What workers lose when misclassified - **Minimum wage / overtime** under FLSA - **Social Security / Medicare contributions** (worker pays both halves) - **Unemployment insurance** eligibility - **Workers' compensation** coverage - **Health insurance** access - **Retirement plan participation** - **Family medical leave** rights - **Anti-discrimination protection** (Title VII, ADA, ADEA) - **Whistleblower protection** - **Right to unionize** - **Reimbursement of expenses** - **Tax withholding** (estimated taxes required instead) - **State / local employee benefits** ## What employers gain (improperly) - Lower payroll tax burden (FICA, FUTA) - No health benefits requirement - No retirement contributions - No unemployment insurance contributions - No workers' comp premiums - Easier to terminate - Reduced HR overhead Estimated 10-30% labor-cost savings — but at significant legal risk. ## Three main classification tests **1. ABC Test** (CA, NJ, MA, others): - (A) Worker is FREE from employer's control - (B) Work performed is OUTSIDE employer's usual business - (C) Worker is engaged in INDEPENDENT trade - ALL three must be met or worker is employee - The strictest test — hardest to use 1099 **2. Common-law right-of-control test** (IRS): - 20 factors examining behavioral control, financial control, relationship - Right to control how work is done = employment - Most flexible / employer-friendly **3. Economic-realities test** (DOL): - 6 factors examining whether worker is economically dependent - Used for FLSA wage/hour purposes - 2024 DOL final rule restored "totality of circumstances" approach ## Common misclassification industries **Heavy misclassification:** - Trucking / delivery - Construction (residential) - Janitorial / cleaning - Landscaping - Healthcare (home health, nursing) - Tech / IT (some) - Sales (especially in-home sales) - Beauty / hair salons (booth-rental) - Gig economy (Uber, DoorDash, Instacart) - Couriers ## Federal misclassification penalties **Tax penalties (IRS):** - 1.5% of wages + 100% of FICA + interest - Up to 100% in willful cases - Form 8919 lets employees recover their share **FLSA back wages:** - 2-3 years (3 for willful) - Liquidated damages = double back wages - Attorney's fees **ERISA / benefit plan back contributions:** - Significant for retirement / health benefits **Social Security / Medicare back contributions** ## State penalties **Unemployment insurance:** - Back contributions - Penalties + interest - Audit triggers across other agencies **Workers' compensation:** - Premium back-payments - State-specific penalties (CA, NJ severe) - Personal liability for officers in some states **State income tax:** - Back withholding - Penalties **State wage / hour:** - Most states have FLSA-equivalents with stronger remedies - CA Lab. Code § 226.8 — civil penalties up to $25,000 per misclassified worker ## Common worker remedies Workers can pursue: - **Department of Labor (federal)** — wage/hour complaint - **State labor agency** complaint - **State unemployment office** — challenge denial - **State workers' comp board** — file claim - **EEOC** — discrimination if termination involved - **Private lawsuit** — individual or class action - **NLRB** — if related to union activity - **PAGA action** in CA (private attorney general) ## Reclassification audits When agencies investigate misclassification: - Multi-agency coordination common (IRS + state UI + WC) - One audit often triggers others - Industry-wide enforcement initiatives - Whistleblower complaints common trigger - Tip-line complaints - Routine UI claim filings (employee files; agency investigates) ## What you should do (workers) If you suspect you're misclassified in Virginia: file Form SS-8 with IRS for determination, file UI claim if separated, contact state labor agency, and consult an employment attorney. Most Virginia wage-and-hour attorneys work on contingency. Many cases are class actions covering all similarly-situated workers. ## What you should do (employers) Audit your worker classifications. Misclassification penalties compound across agencies. Consider reclassification under voluntary IRS programs (VCSP) when uncertain. Most employment attorneys offer flat-fee classification audits. --- *This guide is general information about federal and Virginia law as of early 2026 and is not legal advice. Worker classification has technical state-specific tests. Talk to a licensed Virginia employment attorney about your specific situation.*