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Q&A Forum

ACA and mis-classification of employees


"Can mis-classification of employees impact how you count employees as required by the ACA?"

This question was asked at a recent webinar, now available on-demand:

"Employee or Independent Contractor? That is the Question!"

Please add your thoughts about it below. Thanks!


Kate Grangard
Title: Cfo
Company: Gehring group
(Cfo, Gehring group) |

It is essential that employers not have independent contractors reclassified by either the IRS or DOL as full time employees eligible for benefits under the ACA (130 hrs per month or 30 hours a week). Besides the concern that the employer would be possibly subject to a failure to offer qualified coverage penalty to that specific employee, these misclassified employees could make the employer subject to the sledgehammer aka pay AND play (ESRP) penalty for each month the employer fails to offer coverage to 95% of eligible employees starting in 2016, (70% for 2015). This penalty is substantial as it is calculated at rate of $2000 per year on all employees, even those to whom you cave coverage. This penalty is because an employer would not be deemed to gave offered qualified coverage to substantial ally all eligible employees.

The DOL just issued guidance that helps employers determine if the engaged individual is an employee rather than an independent contractor. See a summary here:

Follow me on linked in for more free facts on ACA.


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