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1099 Vs W2 · File.Business

1099 vs W-2. When you can use a contractor, when you must hire an employee.

You cannot make someone a 1099 contractor just by calling them one. Worker classification depends on the actual nature of the working relationship, not the label. This guide covers the IRS three-factor test, the state-specific ABC test that applies in California and many other states, and the penalties for getting it wrong (back wages, back taxes, penalties, class action exposure).

Updated for 2026 Specialty CPAs available Not tax advice
Key facts

Start here.

Key fact
W-2 employee

Worker under your direction and control. You set hours, location, methods, tools. You handle tax withholding, FICA matching, unemployment insurance, workers comp.

Key fact
1099 contractor

Independent business operator. They control how, when, where work happens. They have multiple clients, use own tools, set own hours. You pay them, they handle their own taxes.

Key fact
IRS three-factor test

Behavioral control, financial control, relationship type. No single factor controls; the totality of the relationship determines classification.

Key fact
ABC test

Used by California (AB5), Massachusetts, New Jersey, and others. Worker is presumed employee unless ALL three: (A) free from control, (B) work outside usual business, (C) engaged in independent trade.

Key fact
Misclassification penalty

Back wages, back FICA, back unemployment, back workers comp, plus penalties (often 100%+ of original obligation), plus interest, plus class action exposure.

In depth

The full explanation.

01

IRS three-factor test

(1) Behavioral control: Does the company direct or control how the worker does the job? (Schedule, location, tools, training, methods.) More control = more likely employee. (2) Financial control: Does the company control business aspects? (Reimbursement of expenses, equipment investment, opportunity for profit or loss, services available to market.) Worker bearing business risk = more likely contractor. (3) Relationship type: Written contracts, employee-style benefits, permanency of relationship, services key to business operations.

02

ABC test (California AB5 and other states)

Stricter than IRS test. Worker is an employee unless ALL THREE: (A) Worker is free from control and direction in performing the work. (B) Worker performs work OUTSIDE the usual course of hiring entity's business. (C) Worker is engaged in an independently established trade, occupation, or business. (B) is the hardest to satisfy: a graphic designer hired by a graphic design firm fails (B).

03

California AB5 exemptions

AB5 exempts specific professions: doctors, lawyers, accountants, real estate agents, financial advisors, marketing consultants, graphic designers (with conditions), and others. Each exemption has specific tests. Outside exemptions, ABC test applies strictly.

04

Misclassification penalties - federal

IRS: back FICA (employer + employee shares = 15.3%), back income tax withholding, failure-to-deposit penalty (2-15%), failure-to-file penalty, plus interest. DOL: back wages including overtime, liquidated damages (often equal to back wages).

05

Misclassification penalties - state

Each state has its own penalties. California: $5,000-$25,000 per misclassified worker plus back wages, plus willful violation criminal penalties. Other ABC-test states similar.

06

1099-NEC threshold

You must issue Form 1099-NEC to any contractor paid $600+ in a calendar year. Form 1096 transmittal accompanies paper filing. Both due to IRS by January 31.

07

Independent contractor agreement

Written agreement clarifies intent but does not control classification. Should include: scope of work, deliverables, payment terms, IP assignment, confidentiality, independent contractor status acknowledgment, no benefits/no employee rights waiver. Our templates cover the essentials.

08

Reclassification options

Voluntary Classification Settlement Program (VCSP): IRS program letting employers reclassify with reduced penalties if certain conditions met. Section 530 safe harbor: protects from federal employment tax liability if (a) reasonable basis for treating worker as contractor, (b) consistent treatment of similar workers, (c) all 1099-NEC forms filed.

FAQ

Common questions.

Can I make a worker 1099 just to save FICA?
No. Classification depends on the working relationship, not the label or what saves money. Misclassification penalties typically exceed the FICA savings by 5-10x.
What is the difference in cost between W-2 and 1099?
W-2: gross wages + 7.65% FICA employer match + ~6% federal/state unemployment + workers comp + benefits. Effective cost ~25-35% above gross wages. 1099: just the payment, no employer-side costs. But misclassified 1099 = all those costs retroactively plus penalties.
Are gig workers 1099 or W-2?
Depends on the platform and state. Uber drivers were ruled W-2 in California under AB5 until Proposition 22 carved out gig drivers specifically. Federal classification under PRO Act proposals would shift more workers to W-2.
Can I have someone work full-time and still be 1099?
Possible if they are truly independent: multiple clients, set own hours, control own work. But full-time-equivalent with a single client is a strong indicator of employee status.
What about international contractors?
Non-US persons working from abroad are usually 1099-equivalent for US tax purposes. Issue Form 1042-S (or W-8BEN for the worker to certify foreign status). US classification rules generally do not apply to foreign work; foreign country employment laws may.
What if I am wrong about classification?
Voluntary Classification Settlement Program (VCSP) reduces federal penalties for employers who voluntarily reclassify. Better to fix proactively than wait for audit.
Do I withhold tax from 1099 payments?
Generally no, unless the contractor is subject to backup withholding. Pay the full invoiced amount and issue 1099-NEC at year-end.
What about 1099-MISC vs 1099-NEC?
1099-NEC: nonemployee compensation (paid for services). Used for most contractor payments. 1099-MISC: other miscellaneous payments (rent, royalties, attorney legal settlements). Both still in use.
Can my LLC be a 1099 contractor?
Yes. LLCs (and other entities) can be paid as contractors. You still issue 1099-NEC to LLC vendors paid $600+, unless they have elected C-Corp or S-Corp treatment (then no 1099 required).

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