3 ms·

Unless you're a lawyer providing counsel, I'm quite certain we're solid. That's not to say I'm right... I'm just fairly confident. We send out the necessary W-

Unless you're a lawyer providing counsel, I'm quite certain we're solid. That's not to say I'm right... I'm just fairly confident. We send out the necessary W-9s and everything. Effectively, our candidates are freelancers until we hire them... and we pay our freelancers according to IRS rules.

ktsmith 16y ago
I said up front that I hoped you've reviewed your hiring process with your legal counsel. That should have been pretty clear to you that I'm not providing you any legal advice. I also noted that I was commenting on your brief description of the process. You now update to say you pay your "freelancers" however in your first post you say you take your accountants advice on paying as an employee or a contractor. Those are two extremely different things and back dating employment (via pay as an employee during the trial period) would have the end result of your company incurring liability for failing to complete employment paperwork in a timely manner among other things. You could also open yourself to liability for discrimination and other issues if you tried to pay someone as an employee, started the hiring paperwork and then found out the individual did not have valid work authorization. Just to say it one more time so there's no confusion. This is not legal advice. Anyone considering anything in the content of this message or implementing the parent posters hiring process should speak to legal counsel before doing so.
listrophy 16y ago
@ktsmith: I wasn't trying to imply that you were providing legal counsel. In addition, we don't change our policy on the whim of our accountant/lawyer... I just don't recall the proper protocol. With a moment of clarity, I do recall our employees having to go through the W-9 process. In addition, not all work was "under the company umbrella." For example, if a candidate paired with an employee during a users group hack night, that was taken into consideration. Like I said, rules are made to be bent.
- ktsmith 16y ago
  The W-9 process is only a portion of what you have to make sure is right when hiring contractors. For example here's a short bit of what the IRS says about it: http://www.irs.gov/newsroom/article/0,,id=173423,00.html http://www.irs.gov/newsroom/article/0,,id=173423,00.html They include links to the more formal rules for that aspect of things on the page. I've been burned by this personally and hence mentioned the rules for employees vs contractors. Though I certainly should have provided the link in my first comment. As to other hiring practices your comment on pay specifically raised a red flag with me if for no other reason than if you paid someone for work as an employee you'd be back dating their date of hire (as far as the government is concerned). My day job is with a company specializing in a very tiny portion of the hiring process and we see large and small companies screw it up every day. The M-247 Handbook for Employers is nearly 70 pages about how to fill out nothing more than the Federal I-9 Form. Screwing up that process can generate civil and criminal liability at the federal level. Then if you are in a state that has additional restrictions (Colorado and more coming soon) you could be incurring even more liability. Have federal contracts and get this process wrong? Potentially kiss them goodbye thanks to the FAR clause. M-274 Handbook for Employers: http://www.uscis.gov/files/form/m-274.pdf http://www.uscis.gov/files/form/m-274.pdf There are a lot of potential pitfalls employers face and it's unfortunate that the government does a pretty poor job of making it clear what the employers responsibilities are as well as consistently enforcing the rules that are on the books. I want to be clear, I'm not trying to be argumentative or anything like that. Based solely on your initial comment I would be concerned about your hiring practice and make sure your counsel doesn't see anything wrong with it. If you are bringing in 100% of the people for a trial basis as contractors and meet the IRS rules you may have nothing to worry about. If you bring one person on under that methodology described (as a backdated employee) you could have some liability sitting in your employee records that you can't fix.

ktsmith 16y ago

I said up front that I hoped you've reviewed your hiring process with your legal counsel. That should have been pretty clear to you that I'm not providing you any legal advice. I also noted that I was commenting on your brief description of the process. You now update to say you pay your "freelancers" however in your first post you say you take your accountants advice on paying as an employee or a contractor. Those are two extremely different things and back dating employment (via pay as an employee during the trial period) would have the end result of your company incurring liability for failing to complete employment paperwork in a timely manner among other things. You could also open yourself to liability for discrimination and other issues if you tried to pay someone as an employee, started the hiring paperwork and then found out the individual did not have valid work authorization. Just to say it one more time so there's no confusion. This is not legal advice. Anyone considering anything in the content of this message or implementing the parent posters hiring process should speak to legal counsel before doing so.

listrophy 16y ago

@ktsmith: I wasn't trying to imply that you were providing legal counsel. In addition, we don't change our policy on the whim of our accountant/lawyer... I just don't recall the proper protocol. With a moment of clarity, I do recall our employees having to go through the W-9 process. In addition, not all work was "under the company umbrella." For example, if a candidate paired with an employee during a users group hack night, that was taken into consideration. Like I said, rules are made to be bent.

ktsmith 16y ago
The W-9 process is only a portion of what you have to make sure is right when hiring contractors. For example here's a short bit of what the IRS says about it: http://www.irs.gov/newsroom/article/0,,id=173423,00.html http://www.irs.gov/newsroom/article/0,,id=173423,00.html They include links to the more formal rules for that aspect of things on the page. I've been burned by this personally and hence mentioned the rules for employees vs contractors. Though I certainly should have provided the link in my first comment. As to other hiring practices your comment on pay specifically raised a red flag with me if for no other reason than if you paid someone for work as an employee you'd be back dating their date of hire (as far as the government is concerned). My day job is with a company specializing in a very tiny portion of the hiring process and we see large and small companies screw it up every day. The M-247 Handbook for Employers is nearly 70 pages about how to fill out nothing more than the Federal I-9 Form. Screwing up that process can generate civil and criminal liability at the federal level. Then if you are in a state that has additional restrictions (Colorado and more coming soon) you could be incurring even more liability. Have federal contracts and get this process wrong? Potentially kiss them goodbye thanks to the FAR clause. M-274 Handbook for Employers: http://www.uscis.gov/files/form/m-274.pdf http://www.uscis.gov/files/form/m-274.pdf There are a lot of potential pitfalls employers face and it's unfortunate that the government does a pretty poor job of making it clear what the employers responsibilities are as well as consistently enforcing the rules that are on the books. I want to be clear, I'm not trying to be argumentative or anything like that. Based solely on your initial comment I would be concerned about your hiring practice and make sure your counsel doesn't see anything wrong with it. If you are bringing in 100% of the people for a trial basis as contractors and meet the IRS rules you may have nothing to worry about. If you bring one person on under that methodology described (as a backdated employee) you could have some liability sitting in your employee records that you can't fix.