10 Strategies to Reduce Contractor Compliance Risk (Guide)
10 MIN
As the project-based economy continues to evolve, managing independent contractor talent effectively will be critical. If you suspect your business may be using independent contractor engagement practices that heighten your risk profile, it’s important to arm yourself with an understanding of what today’s most forward-thinking companies are doing to reduce their compliance risk. The following 10 best practices can help mitigate or even eliminate the risks associated with engaging independent talent.
GATE
1. Establish a consistent, centralized process to evaluate and onboard independent talent
Regulatory authorities are paying increased attention to the proper classification of independent contractors, prompting all businesses to revisit their independent contractor compliance policies and procedures. A great way to start this process is by getting a general understanding of your organization’s classification and engagement procedures. What are you doing to ensure proper classification? Who is doing it? How consistently is it being done?
It’s also important to understand the extent to which your procedures are being followed. If a certain procedure isn’t being adhered to, try to identify if there are any common issues or complaints that may be causing people to work around it. With this information in hand, you can avoid creating the same issues when you institute a new procedure, thus increasing adoption and overall program success.
A great way to start your compliance process is by first getting a general understanding of your organization’s current independent contractor classification and engagement procedures.
2. Outline the baseline requirements for all independent contractors
Your managers need to know the policies and procedures for engaging independent contractors. However, before you start writing your policy evaluate the quality of your current program. Is the process easy to navigate for your hiring managers? Is the talent you are engaging clear on what they need to ensure proper engagement? Has the program been adopted adequately, or is it being avoided? How accurate are your classification determinations?
Your policy should clearly state what is to be expected during the independent contractor evaluation process. Outline baseline requirements for a qualified independent contractor, such as insurance coverages and limits, contract language, and billing instructions or payment terms. The policy should also specify that all independent contractor assignments are governed by a guiding Statement of Work (SOW). This can empower hiring managers to initiate independent contractor engagements by producing an SOW that follows a consistent format—including defined beginning and end dates, expected results or deliverables, and associated payment schedules.
A clear policy should outline the baseline requirements for a qualified independent contractor, such as insurance coverages and limits, contract language, and billing instructions or payment terms.
3. Review vendor procurement practices to properly vet any small business including independent contractors
Companies often pay independent contractors through invoices and categorize them as 1099s for tax reporting purposes. The number of small services providers is typically low in volume, and they are often not required to maintain the levels of insurance or contract terms of other larger vendors. This can cause problems for companies when faced with potential lawsuits that would have otherwise been protected under a vendor’s General Liability of Errors & Omissions insurances.
That’s why it’s necessary to review the practices associated with these vendors and try to create standardized requirements for all contracted vendors. Consider setting a standard minimum level of business insurance coverage. All of these important procedural changes should be reflected in your standard contracts.
Consider setting a standard minimum level of business insurance coverage to avoid problems such as potential lawsuits.
4. Assess your independent contractor template
It’s easy for hiring managers to get into the habit of using a standard independent contractor template and sending it over to any new contractor who joins your organization. However, this can be problematic for two reasons:
- The contract language may not include adequate protections, and
- Different managers may be working from different versions of a contract template that has changed over time.
Therefore, it’s critical to carefully review your company’s independent contractor contracts on a regular basis. A contract template should include a few key details: the business name of the independent contractor, whether sub-contracting is allowed, and a clause that specifically identifies independent contractor status. While this clause doesn’t make an independent contractor compliant by default, it’s important to make sure the contractor you are engaging understands the expectations and limitations of your relationship.
Your independent contractor payment terms and business insurance requirements must be consistent across the board—and never waived under any circumstances. All non-disclosures, intellectual property rights, and noncompete clauses should be consistent and applicable. Additionally, be sure to research existing contracts to make sure that certain vendors aren’t “grandfathered in” under outdated contracts that may include exceptions from your new standard.
A contract template should include a few key details: the business name of the independent contractor, whether sub-contracting is allowed, and a clause that specifically identifies independent contractor status.
5. Evaluate your insurance and/or employee benefit plans
Carefully review your benefit plan documents. Do they expressly exclude groups that could be interpreted as contract-based workers? If not, you should modify them immediately. Only your W-2 employees may be eligible for employer-sponsored benefits such as medical insurance, retirement programs, or stock plans.
It’s also wise to determine whether any of your existing independent contractors or small services providers are receiving any employee-like benefits. If so, take action to ensure such benefits are no longer available to these individuals in the future.
6. Audit your 1099 population and review against your new compliance policy
With a new independent contractor engagement policy in place, your business will make great strides toward ensuring compliance for incoming independent contractors. But what about existing independent talent?
You can conduct an audit of your 1099 population over a sample time period (6-12 months) to evaluate your current independent contractors. Don’t worry just yet about whether these contractors are correctly classified. For now, simply determine roughly how many independent contractors you have engaged throughout the sample time period, what their common duties are, which business areas they work in, and who made their classification determination.
Conduct an audit of your 1099 population over a sample time period to ensure that they have been correctly engaged and classified.
7. Determine if you need an enterprise independent contractor compliance program
If an external independent contractor compliance specialist has not previously supported your business, it’s very likely that your company is currently engaging some misclassified contract talent.
You might consider implementing a consistent and effective independent contractor compliance program, with additional staff or training if needed, or explore outsource options. Think carefully about whether your current staff has the time, support, and training to carry out a compliance program. If not, assess the feasibility of expanding your staff or providing additional training or support. Going forward, ensure that their decisions are closely monitored through peer review or a legal consultant.
If you choose to look outside of your organization, independent contractor engagement specialists such as MBO Partners can fill this need for you. MBO Partners can take over your entire independent contractor engagement and compliance process and serve as an employer of record for independent contractors who are found not to be compliant.
If you have not previously worked with an independent contractor compliance specialist, it’s likely that your company is currently engaging some misclassified contract talent.
8. Understand your risk profile
To understand where your compliance risk lies, select a randomized group of independent contractors from your sample time period and conduct assessments to determine whether they are indeed compliant with regulatory guidelines. Be sure to have a clear understanding of the criteria used by auditors to establish compliance status—and keep in mind that not every independent contractor will be clearly compliant or non-compliant. Different authorities may apply different criteria for determining compliance.
Following the evaluation of your initial sample group, you may need to analyze another sample, or multiple samples, with the underlying goal of determining the accuracy of your assessments. Remember that you must assess not just the individual but also the elements of their specific engagement before reaching a determination. In some cases, the same independent contractor may be found to be compliant for one assignment and non-compliant for another.
9. Obtain executive sponsorship to drive program adoption and sustainability
Leading independent contractor compliance program with guidance from your legal in-house counsel is an effective approach. With sound legal judgment and support, it’s usually easier to modify procurement or sourcing processes to correctly engage new independent talent.
However, that may not always be enough. To achieve the highest internal compliance with your new policy, insist upon the highest possible level of executive sponsorship. You can typically present a strong business case for getting the C-suite involved. CFOs and CEOs recognize the level of compliance driven by their involvement has significant value—especially if there is a financial event like an IPO or acquisition planned in the near future.
To achieve the highest internal compliance with your new policy, involve in-house legal counsel as well as executive sponsorship from the C-suite.
10. Plan for change management issues and internal communication hurdles prior to launch
The best-laid plans can be easily derailed when your team feel they are not included or consulted before a major change. This can cause some serious pushback—hiring managers might feel that they will be unable to complete critical projects if their use of independent contractors is restricted or jeopardized.
Therefore, it’s important to communicate frequently about changes in policy and allow ample time for new processes to be explained and integrated into the workflow. When discussing the reasons for these changes, it’s generally best to center the conversation around a positive outcome such as greater hiring efficiency or process improvement rather than correction of a non-compliant process or even risk mitigation.
Before launching a new compliance policy or program, ensure you communicate frequently with staff and allow time for new processes to be explained and integrated into the workflow.
Conclusion
Establishing a compliant independent contractor engagement program can be challenging, but there are many rewards: improved access to critical talent, enhanced visibility into your workforce, and, of course, reduced independent contractor-related risk. Organizations that find a way to embrace independent talent without putting their company at risk will have a distinct competitive advantage in today’s project-based economy.
The information included in this article should not be construed as legal advice or legal opinion on specific facts and should not be considered representative of the views of its authors, its sponsors, and/or the ACC. This guide is not intended as a definitive statement on the subject addressed. Rather, it is intended to serve as a tool providing practical advice and references for the busy in-house practitioner and other readers.
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