How to correct employee misclassification

Navigate the complexities of correcting employee misclassification, mitigating legal risks, and ensuring proper workforce classification for organizational compliance and stability.
how to correct employee misclassification
Written by
Ontop Team

Employee misclassification can have significant repercussions for both employers and employees. Misclassifying employees as independent contractors or vice versa can lead to legal and operational compliance issues. Not only can this result in financial penalties and legal consequences, but it can also impact the well-being of workers who are denied important employment rights and benefits.

In this blog post, we will explore the implications of employee misclassification and provide strategies to rectify misclassification issues, ensuring legal and operational compliance.

Employee Misclassification Explained

Employee misclassification refers to the practice of incorrectly classifying workers as either employees or independent contractors. While the distinction may seem trivial to some, it has far-reaching implications. An employee is an individual who works for an employer under the employer's control, whereas an independent contractor is self-employed and is responsible for their own work and business operations.

Many employers misclassify their workers as independent contractors to avoid paying payroll taxes, workers' compensation insurance, and providing benefits such as health insurance, retirement plans, and paid time off. By doing so, they shift the burden of these costs onto the workers themselves, denying them important protections and benefits.

Repercussions of Employee Misclassification

1. Legal Consequences: Misclassifying employees can have severe legal ramifications. Employers who misclassify their workers may face penalties, fines, and potential lawsuits. The U.S. Department of Labor, state labor agencies, and the Internal Revenue Service (IRS) are vigilant in identifying misclassified workers and taking legal action against non-compliant employers.

2. Financial Implications: Employers who misclassify workers may be responsible for paying back taxes, including Social Security and Medicare contributions, as well as unpaid overtime wages. These financial obligations can be substantial and jeopardize a company's financial stability.

3. Lack of Employment Protections: Misclassified workers commonly lack essential employment protections, such as workers' compensation, unemployment insurance, and protection under various employment laws such as the Fair Labor Standards Act (FLSA). This leaves workers vulnerable to accidents, illnesses, and economic uncertainties.

Rectifying Employee Misclassification Issues

If you suspect that your business has misclassified employees, it is crucial to rectify the situation promptly. Here are some strategies to help correct employee misclassification and ensure legal and operational compliance:

1. Review Worker Classification: Begin by reviewing the job duties, degree of control, and contractual arrangement with each worker. Assess whether they should be classified as an employee or an independent contractor based on the specific guidelines provided by the governing authorities.

2. Consult Legal Experts: Seek professional legal advice to ensure accurate classification and compliance with all applicable laws and regulations. Labor laws can be complex and state-specific, so consulting an employment attorney or tax specialist knowledgeable in employment classification is advisable.

3. Adjust Worker Designation: Once you have reviewed your worker classifications, make the necessary adjustments. If you realize that a worker has been misclassified, change their designation as per the accurate classification. Notify the affected workers about the reclassification and provide them with information on the changes in their employment status.

4. Update Contracts and Policies: Review contracts, policies, and agreements to ensure they align with the updated worker classifications. Update any documentation that may need revision to reflect the accurate employment status of the workers.

5. Educate Management and HR: Train your management team, HR personnel, and relevant staff members on proper worker classification practices. Ensure they understand the legal implications of misclassification and provide them with guidelines to avoid misclassification in the future.

6. Maintain Accurate Records: Keep detailed records of worker classifications, contracts, agreements, and any changes made to ensure compliance. Accurate record-keeping will help you demonstrate your commitment to proper employment practices during potential audits or legal proceedings.


Employee misclassification is a serious issue that can have significant legal, financial, and operational consequences. Employers must understand the implications of misclassification and take proactive steps to rectify any misclassification issues. By properly classifying workers, complying with labor laws, and providing employees with the benefits and protections they deserve, businesses can ensure legal compliance and foster a fair and equitable work environment.

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