California EDD Audit Attorney
No business owner wants to face California EDD problems. If the EDD contacts you, proper guidance from an experienced EDD audit attorney can save you thousands.
What to Expect in a California EDD Audit
As the largest tax collection agency in California, the Employment Development Department (EDD) is charged with collecting payroll taxes from over 17 million workers every year, accounting for over $31 billion of California’s tax system.
Because of its tremendous responsibility, the EDD cracks down hard on those who fail to file the right forms or make appropriate payroll tax withholdings. When dealing with the EDD, there is little room for small business owners or employers to make a mistake.
How to Reduce Your Risk of an EDD Audit
Properly Classifying Workers is the key to avoiding EDD Audit
Ensuring that all of your workers are classified correctly is one of the strongest ways to reduce your risk of an EDD audit. A large portion of California EDD problems are caused by worker misclassification. It can be confusing for small business owners, especially if you are just starting out, to accurately determine whether a worker is an employee (receiving a W-2) or an independent contractor (receiving a 1099).
San Diego’s Top EDD Audit Attorney
If you are struggling to resolve California EDD problems while trying to keep your small business running, look no further than our team. At Milikowsky Tax Law, we are committed to protecting our clients’ best interests and providing expert legal counsel. We understand that dealing with any government agency, particularly the EDD, can be daunting. Working with one of our San Diego EDD audit attorneys will provide you with the defense you need to protect your business.
Assembly Bill 5 (AB-5): Your Ultimate Guide
California Assembly Bill 5 (AB-5) took effect on January 1, 2020, and is the new standard by which employers must classify employees. Small business owners (SBOs) should familiarize themselves with AB-5 and the ABC test to avoid employee misclassification and potential penalties from the Internal Revenue Service (IRS).
What is Assembly Bill 5 (AB-5)?
Assembly Bill 5, commonly referred to as AB-5, is a piece of legislation that extends employee classification status to some independent contractors, requiring that hiring entities reclassify these workers as employees based on the strict criteria outlined in the ABC Test.
What Caused Assembly Bill 5?
Assembly Bill 5 was inspired by the April 2018 Dynamex Case—when Dynamex reclassified all employees (previously classified as W-2s with all the associated perks) as independent contractors to save employee costs– before being signed into law by Governor Gavin Newsom in September 2019.
Read on to learn how Dynamex ruined it for everyone.
What Businesses Does AB-5 Affect?
AB-5 affects all small businesses and small business owners. Most prominently, AB-5 impacts SBOs who hire 1099 independent contractors and their operations in California.
How Does AB-5 Affect Businesses?
Through AB-5, the California Employment Development Department (EDD) places the burden of proof on businesses to show that workers are correctly classified as 1099 contractors.
The misclassification of employees can lead to:
How Do I Correctly Classify 1099 Independent Contractors?
AB-5 introduced the ABC test as a stricter guideline to determine how to classify a worker as a 1099 independent contractor.
What is ABC Test?
Check out our video below for an in-depth explanation of the ABC Test.
The ABC test is a set of requirements that the worker must meet to be classified as a 1099 independent contractor instead of a W-2 employee. The worker must meet all three criteria of the ABC test to be correctly classified as an independent contractor:
If the contractor fails to meet any of the criteria in the ABC test, they are automatically classified as a W-2 employee instead.
How To Meet The ABC Test Criteria
When classifying your 1099 independent contractors according to the ABC Test, gather the following information to make sure they are classified correctly.
The First Criteria
The Second Criteria
The Third Criteria
What is the Borello Test?
Before AB-5 was signed into law, the Borello test was used to determine if an employee should be classified as a 1099 independent contractor or a W-2 employee. The Borello test was established by the Supreme Court in S.G. Borello & Sons, Inc. v. Dept. of Industrial Relations (1989). The test relies on 13 factors to determine employee classification.
Even with new AB-5 regulations, the Borello test can still be a useful resource to help classify employees.
EDD provides the full Borello test worksheet with the following questions to help guide classification:
Answering “yes” to questions 1-3 would provide a strong indication that the worker is an employee. Answering “no” to questions 4-6 would indicate that a worker is not in business for themselves and would likely classify as an employee. Questions 7-13 indicate important factors to be considered.
While answering “yes” to any one of the questions may indicate that a worker should be classified as an employee, no single factor is enough to determine classification independently.
The full worksheet provided by EDD provides further clarification on certain factors and circumstances.
If completing the provided worksheet does not provide sufficient clarification for employers, EDD also offers the ability to request a written ruling by completing a seven-page form called Determination of Employment Work Status. The form supports any business entity looking to determine if a worker is an employee or an independent contractor.
How Do I Avoid Misclassification?
You can avoid misclassification by carefully analyzing the arrangement you have with your worker in relation to the guidelines described in the ABC test and regulations set forth by AB-5.
To learn more, read on about how to hire an independent contractor.