Employee Misclassification: Improved Coordination, Outreach, and Targeting Could Better Ensure Detection and Prevention

In 2011, the Department of Labor's Wage and Hour Division (WHD) launched a misclassification initiative and in 2013 reported it is fully functional. The initiative is part of an effort to integrate the consistent and accurate detection of employees misclassified as independent contractors into WHD's general enforcement activities. Since WHD launched the initiative, it established and and heads an internal working group involving several Labor departments, that explore ways for all DOL agencies to provide better guidance to workers and employers, and increase information sharing both between Department agencies and between the Department and other federal and non-federal agencies. As part of the initiative, WHD has also entered into an information-sharing Memorandum of Understanding (MOU) with the IRS, as well as MOUs with many state enforcement agencies. In addition, WHD is conducting directed enforcement initiatives in priority industries that employ vulnerable workers or workers that are often misclassified as independent contractors.

In 2009, WHD said that it would assess its current referral processes to ensure that they adequately provided for referrals to other agencies in cases related to employee misclassification. In 2010, WHD reported that it is participating in a Joint DOL misclassification initiative with OSHA. As of 2013, WHD and OSHA continue to meet to share information about trends in misclassification and strategies for investigating these cases. As opportunities permit, they will continue collaborate on misclassification.

In 2009, the Department of Labor (DOL) expressed support for establishing a joint interagency effort to address misclassification. DOL stated that a joint effort between DOL and IRS may prove useful in WHD's efforts to enforce wage and hour laws, and that WHD would participate in any such interdepartmental effort. In 2010, DOL reported that the President's Fiscal Year 2011 budget proposes $25 million for a DOL initiative that will include close cooperation with its partners in the Internal Revenue Service (IRS) to address worker misclassification. DOL will work with Congressional leadership to enact legislation that will address worker misclassification under the Fair Labor Standards Act. The President's 2011 Budget also includes a proposal to help employers and the IRS clarify the status of workers for employment tax purposes, so that the incidence of (and in some instances, the excuses for) misclassification will be reduced. IRS reported that the Questionable Employment Tax Practices (QETP) Oversight team, made up of representatives from the IRS, the DOL, the Federation of Tax Administrators, the National Association of State Workforce Agencies, and five state workforce agencies reviewed the study recommendation and agreed to work together to improve interagency efforts with other federal and state agencies on misclassification. Specific actions taken include:The QETP Oversight team made misclassification and outreach a regular agenda item on its bi-monthly conference calls and will continue to develop strategies to improve misclassification compliance. An outreach sub-team that includes members from IRS GL, SL, Communications, Employment Tax, DOL, and state workforce agencies was established to improve outreach to stakeholders.A joint IRS and Department of Labor misclassification team was established to share information and develop strategies on misclassification.Representatives from the IRS participated in three DOL forums that provided information on QETP and IRS Employment Tax misclassification compliance efforts to state workforce agencies.

In 2009, IRS said it would consider expanding the Classification Settlement Program (CSP) to employers not under examination and commented that if it decides to expand the program, it will consider all options, including issuing notices and soft letters and soliciting volunteers through outreach and education. GAO appreciates these efforts and continues to believe that extending the CSP to include employers that volunteer to prospectively reclassify their misclassified employees would be an effective way to increase proper worker classification and that it would be useful to test whether sending notices would be a cost-effective feature of an expanded program. A team of representatives from IRS, DOL, and SSA reviewed the CSP process in conjunction with the Voluntary Closing Agreement (VCA) process. The purpose is of the team is to determine whether to develop a VCA similar to the CSP such that employers who are not under audit can self-correct their treatment of workers. The team prepared recommendations for the Small Business/Self-Employed Commissioner's consideration that include that the expansion of the CSP program is appropriate. The recommendations are currently under review by Counsel. Implementation of the recommendations will be dependent upon any legal and other obstacles identified.During September 21, 2011, IRS issued announcement 2011-64 on the creation of the Voluntary CSP (VCSP), which expands the CSP as our recommendation envisioned to cover those employers who wish to voluntarily reclassify workers as employees. This expansion does not include soft notices as our recommendation suggested as an option. John Tuzynski, IRS manager overseeing VCSP, said in an October 19, 2011 phone call that soft notices would be considered but that they are not a high priority, particularly until IRS sees how the new expanded program plays out.

IRS expressed support for this recommendation, stating that coordination between departments and agencies at the federal and state levels is an effective way to encourage voluntary compliance and agreed to work with DOL to explore developing a joint effort, subject to disclosure rules under section 6103 of the Internal Revenue Code and other privacy rules. In FY2011, IRS notified GAO that DOL and IRS have evaluated the potential benefits of tax information that can be shared and is seeking to identify new and enhanced partnering arrangements, subject to disclosure rules under IRS Section 6103, as well as privacy rules under 5 U.S.C. 522a. A procedure has been put in place to allow referrals to easily flow from DOL to the IRS. A MOU to facilitate additional exchanges of information is under development and is expected to be completed in 2011.

The Department of Labor (DOL) agreed to explore opportunities to collaborate to offer education and outreach to workers on the topic of worker classification, including developing a standardized document that DOL would require employers to provide to new workers. WHD agreed to reach out to IRS to explore opportunities for joint outreach to workers, and IRS agreed to collaborate with DOL, make education and outreach materials available to DOL, and work with them to explore developing a standardized document on classification for DOL to provide to new workers. In September 2010, IRS reported that the Questionable Employment Tax Practices (QETP) Oversight team, made up of representatives from the IRS, the DOL, the Federation of Tax Administrators, the National Association of State Workforce Agencies, and five state workforce agencies reviewed the study recommendation and agreed to work together to improve interagency efforts with other federal and state agencies on mis-classification. Specific actions taken include: The QETP Oversight team made mis-classification and outreach a regular agenda item on its bi-monthly conference calls and will continue to develop strategies to improve mis-classification compliance. An outreach sub-team that includes members from IRS GL, SL, Communications, Employment Tax, DOL, and state workforce agencies was established to improve outreach to stakeholders.A joint IRS and Department of Labor mis-classification team was established to share information and develop strategies on mis-classification.Representatives from the IRS participated in three DOL forums that provided information on QETP and IRS Employment Tax misclassification compliance efforts to state workforce agencies.

In 2009, IRS agreed to work with state workforce agencies participating in QETP to establish a forum to identify and address data sharing and IRS points of contact issues using its Enterprise Wide Employment Tax Program. In August 2009, the QETP Oversight Committee established the Outreach Sub-team which includes members representing State Workforce Agencies participating in the QETP and IRS. The Oversight team meets bi-monthly and will address, as a regular agenda item, issues regarding expeditious data sharing and IRS points of contact.