What are you losing by being classified as an independent contractor when you should be paid as an employee? Money!

1099 vs. W2?

If you are an employee in Minnesota you should receive a W2 form at the end of the year that summarizes your compensation including wages, health benefits, retirement, and social security (FICA), including the employer’s contributions on your behalf. If you do not receive a W2 and are sent a 1099 at the end of the year, you are working as an independent contractor and you are liable for all taxes and insurance. In fact, whether you are sent a 1099 or not, you are liable for all applicable taxes and insurance when working as an independent contractor.

Who Is An Independent Contractor?

If you answer ‘no’ to any of the questions below, you are likely not an independent contractor and should be classified as an employee with your employer paying your FICA and worker’s compensation and other benefits.

• Do you have your own office and equipment?
• Do you file self-employment income tax returns with the Minnesota Department of Revenue using a business tax I.D. number?
• Do you have a contract for each project with a set price for services?
• Do you decide how and when to perform your work?
• Do you pay for any materials and your own equipment?
• Are you “on the hook” for failure to complete work?
• Are you getting paid per-job AND not on an hourly basis?
• Do your earnings depend on your job quote minus your business expenditures, and NOT on an hourly wage?
• Are you registered as a construction contractor with the Minnesota Department of Labor?

As an independent contractor you’re potentially losing:

• 7.65% of your income.
  Employers must pay half of the employees’ FICA (social security) taxes. That is 7.65% of the employee’s income. The employee pays the other half. As an independent contractor you must pay the entire FICA contribution or 15.3% of your income. FICA taxes are required.
• The protections of minimum wage laws.
• The right to overtime pay.
• The right to unemployment insurance.
• Possibly employee benefits such as health insurance, paid time off and retirement contributions.
• Being free from personal liability in the event of an accident or damage to property.

How Can You Protect Your Rights?

You can file a claim for wages owed and potentially be entitled to additional damages and costs. Contact FCF at (651)797-2726, toll free at (844)777-0606, or via email at info@fcfmn.org . An employer is barred from retaliating against anyone seeking to protect his or her rights.

The government recently promoted “Apprenticeship Week” around the U.S., and it was often repeated that the Building Trades set the high standard to which the government wants all programs to aspire.

But it’s not enough to simply have an apprenticeship program – quality matters immensely, and this is particularly true in construction. And joint apprenticeship programs are clearly the most effective.

A recent study in Michigan compared data from 2000-2016 for joint apprenticeship programs (i.e., those run by construction trade unions in collaboration with their contractors) with those run by the Associated Building & Contractors (ABC), as well as single-employer programs. It found that joint programs far outpaced the other two programs in terms of number of apprentices trained, dropout and graduation rates, and earning potential of program graduates.

Joint programs trained 79% of all Michigan construction apprentices between 2000-16. These programs had a graduation rate of 31%, and a dropout rate of 45%. While this seems large, the ABC programs correspondingly had a graduation rate of just 14% with a dropout rate of around 66%, while single-employer programs graduated only 17% of apprentices, and had a dropout rate of 57%.

Joint program also enrolled higher numbers of women and minority apprentices. For the ABC programs, 9% of new apprentices were ethnic/racial minorities; joint programs were 21% minority. Women accounted for 4% of joint program apprentices, whereas women made up only 1% of enrollment in ABC programs.

Furthermore, apprentices who graduated from a joint program had much higher earning potential than graduates of ABC programs, earning fully double the amount that the latter group earned. This ultimately affects the quality and vibrancy of local construction markets because other research has demonstrated that workers earning higher wages are more productive and efficient than their lower-paid counterparts. High wages also encourage contractors to make more use of capital equipment, increasing productivity.

All of this supports the argument that the simple existence of an apprenticeship program is not sufficient to guarantee success. Quality matters, not only in terms of results for apprentices enrolled in the program, but for project owners and taxpayers who ultimately hire those apprentices and expect them to do the job right the first time.

FCF first ran into Jamek Engineering in 2012. When FCF first investigated Jamek we discovered workers who had been paid less than 25% of the prevailing wage requirements on public projects and some workers who were denied payment altogether. In late 2015, thanks to the efforts of IUPAT District 82, FCF came across Jamek again, this time on a project in St. Paul, which had received federal and other public funding. Through the investigation FCF and District 82 discovered that Jamek had again apparently employed workers who had been paid less than 25% of the prevailing wage, kept some workers completely off the books, failed to pay some workers at all, submitted fraudulent documents, and had hired a 15 year old to perform construction work.

FCF and IUPAT District 82 submitted a complaint on this project to the City of St. Paul and the United States Department of Labor. The US DOL looked into this project in-depth, and also investigated other federally funded work that Jamek was performing. In June of 2017, the US Department of Labor submitted an Order of Reference to the Office of Administrative Law Judges regarding Jamek Engineering. This submittal is part of the Department’s efforts to debar Jamek Engineering from federal work. Along with the Order of Reference the Department submitted the summary of its findings, which allege that Jamek underpaid its employees by over $40,000 on two projects subject to Davis-Bacon prevailing wage requirements. Federal debarment may occur where the violations of the contractor’s obligations under the Davis-Bacon Act are aggravated or willful.

Debarment is a serious step for the Department to take, and this is the first investigation that FCF has worked on that has resulted in an effort to debar a contractor at the federal level. Federal debarment would render Jamek ineligible for any federal or federally funded work.   Further, under the Responsible Contractor Law, should Jamek Engineering be debarred by the federal government, it would be ineligible for any public work in the state of Minnesota. This is particularly relevant as Jamek appears to have once again started bidding on public work in Minnesota.  

As most people reading this likely know, construction is booming across the State of Minnesota. For the past few years construction in the state has been at very high levels, and it does not look like 2018 will be any different. On November 7, 2017 voters approved approximately $1.3 billion in Bonding for Minnesota Schools. In earlier Bonding referenda during 2017 Minnesota voters had separately approved over $240 million in bonding throughout the state. This money will be used for building, technology, and capital improvements for Minnesota Schools throughout the state. A little over $1 billion of the bonding referenda approved on November 7 was in the metro area, with Anoka-Hennepin voters alone voting yes on $249 million Bonding Referendum, the largest in the state in two decades.

This year’s bonding referenda success follows approval of over $450 million in bonding for construction and capital improvements in 2016 and almost $1.9 billion in approved bonding for construction and capital improvements throughout the state in 2015. Much of the construction approved in 2015 and 2016 is ongoing with substantial work remaining. Between the large amounts of school construction that is underway, or will be getting underway in 2018, and the high levels of other construction throughout the state, the industry looks to remain quite busy in Minnesota for 2018 and beyond.

Minnesota’s Responsible Contractor Law has now been effective for three years. The law applies to publicly owned construction projects in Minnesota valued at $50,000 or more. The law aims to keep contractors with serious violations of certain labor standards laws off of public projects. Since the law went into effect, almost three hundred contractors have been excluded from public work under its provisions.  

Of particular interest is the law’s impact on independent contractor misclassification. Misclassifying employees as independent contractors is a pervasive and increasing problem in numerous industries. By misclassifying employees as independent contractors employers are able to achieve significant cost savings by avoiding certain tax liabilities related to their employees, and to avoid other costs of employees, such as providing employee benefits, unemployment insurance, workers compensation coverage, and more. These savings provide a significant cost advantage for unscrupulous employers as they manage to avoid many of the costs of doing business that law-abiding contractors legitimately incur.   This practice also undermines state programs such as unemployment and workers compensation insurance as payments are not being made into these systems for misclassified employees. The practice also has a negative impact on state revenues because in many cases income taxes are not being remitted for misclassified employees at all.

The scope of independent contractor misclassification is large, and likely increasing. The problem is particularly pervasive in the construction industry due to the cost advantages discussed above resulting in bidding advantages for contractors who engage in this behavior. Fortunately, Minnesota’s Responsible Contractor Law provides one mechanism to combat this behavior in public construction. In the construction industry Minnesota has a specific and strict statutory test to determine if an individual is a legitimate independent contractor. Violations of this statutory test can result in a contractor receiving an administrative or licensing order that generally carries a monetary penalty.

Importantly, however, receiving one of these administrative or licensing orders that has become final renders a contractor ineligible under the Responsible Contractor Law for a period of three years. This is an important tool in keeping contractors who engage in this behavior off of public projects where low bid requirements might make the unlawful cost cutting they achieve by misclassifying employees an even more substantial advantage. For more information on the Responsible Contractor Law, and a list of contractors who are ineligible for public work under the law, visit www.ResponsibleMN.org.

Earlier this year Wisconsin completed its repeal of its prevailing wage laws. Wisconsin began its prevailing wage assault by previously repealing prevailing wage requirements for local governments. Data collected by the Wisconsin Coalition of Contractors showed that from January through April of 2017 out-of-state contractors received $32 million in contracts for municipal projects in Wisconsin. This represented a 53% increase over the same time period for 2016, when municipal projects were subject to prevailing wage requirements. This jump in work being awarded to out of state contractors obviously harms Wisconsin construction businesses, but is also likely to have a negative impact on other Wisconsin businesses as money is taken home by these contractors instead of being spent and invested in Wisconsin. Likewise, Wisconsin’s tax revenues dwindle as less money is spent in the state.

Of course Wisconsin construction workers also stand to lose with the repeal of Prevailing Wage requirements. In repealing its prevailing wage laws Governor Walker and the Wisconsin Legislature are sending a message: that they believe construction workers in Wisconsin are overpaid, and should work for less. At the same time that Wisconsin is trying to cut Wisconsin construction worker wages one of its Senators, Ron Johnson, is proposing an overhaul of the visa system in the United States. Senator Johnson’s proposal would shift visa decisions from the federal government to the states, and would also result in a significant increase in the amount of visas issued.   In discussion of this proposal, construction is often mentioned as an industry where there is a shortage of labor, both in Wisconsin and nationally.

If there truly is a shortage of construction labor in Wisconsin, it seems odd that Governor Walker and the state legislature are seeking to cut their wages. In fact, if there is a shortage of construction workers in Wisconsin, necessitating an increase in the amount of visas for Wisconsin construction workers, construction wages should be increased, not decreased by the state legislature. As construction wages are decreased in Wisconsin, any shortage of construction workers in Wisconsin will very likely worsen; an industry requiring demanding physical labor from its workers, which already needs more workers than it has, is unlikely to attract more workers with lower wages. Going forward it looks like Wisconsin will be making up for any shortages of construction labor with construction workers from out of state and maybe even out of the country.

November brought in a greater emphasis on national apprenticeship programs than the Country has seen in recent years. National Apprenticeship Week was celebrated from November 13-19^th. Of course, the pioneers in massive apprenticeship success have long been that National Building Trades Unions and their affiliates. But with the soaring demand for labor, coupled with a greater awareness in college debt struggles, the apprenticeship programs are now in vogue for everyone who wants to emulate the building trades and their partner construction contractors.

The United States Department of Labor boasted over 1,000 events across the 50 states that showcased apprentice leaders from every corner of the country. Also, the Secretary of Commerce Wilbur Ross and Education Secretary Betsy DeVoss joined Secretary Alexander Acosta in a recent meeting to strategize on how to expand on success that skilled construction labor has enjoyed for decades through their joint apprenticeship training centers (JATC).

A few of the noteworthy apprenticeship highlights from across the nation include:

• The Sheet Metal Workers Local 100 in Maryland hosted Secretary Acosta on a visit he made to see first hand their great example of the “earn while you learn” doorway into the skilled trades;
• At least 95 cities and states, and even foreign countries, signing National Apprenticeship Week proclamations;
• Approximately 30 million digital impressions were gathered from the weeklong celebration of “the other four year degree” programs that allow committed students to join the workforce debt free.

Closer to home Minnesotans participated in our own Department of Labor and Industry (DLI) and economic development councils’ hosting of a bus tour that raised awareness on financially beneficial careers that are opened through apprenticeships. On November 16^th they visited the Iron Workers, the Laborers and the Carpenters Unions’ JATC facilities. In Hermantown the Carpenters also hosted a luncheon at its training center that allowed contractors to share their opportunities and success at staffing its workforce with skilled, safe and productive unionized construction labor.

FCF capitalized on the Mid-November enthusiasm too. We introduced regulatory bodies to the skills and safety training that Minnesota’s JATCs provide. We organized a tour of the Pipe Fitters Local #539, the Sheet Metal Workers Local #10 and the Iron Workers Local #512 training centers across the metro region. In attendance were dedicated field agents from the U.S. Department of Labor, MN’s DLI, the Minnesota Department of Transportation and the Minneapolis Contract Compliance staff. Nearly 30 individuals received personal presentations from three excellent JATC coordinators: Chad Birk, Carl Zitzer and Larry Gilbertson.

In early 2016, the historic west end Hope Engine Company #3 firehouse, located at the intersection of Grand Avenue and Leech Street in St. Paul, was destined for the wrecking ball.

Built in 1871, it served as St. Paul’s first volunteer fire station and was in operation from 1872 to 1956. The 2-story Hope Engine Company #3 Firehouse is reported to be the oldest former municipal building to remain standing in St. Paul, though it was never designated as a historical building.

A local developer had plans to raze the building to make room for a hotel. However, neighborhood residents and historic-preservation groups joined forces to fight the destruction of the century old building. After a restraining order, a civil lawsuit to halt demolition, a 90-day stay, negotiations and a redesign, more than a year later there is an amended plan for a developer to incorporate the historic structure into the hotel’s design.

The deal includes a $500,000 loan from the city Housing and Redevelopment Authority to help offset the cost of incorporating the building into the hotel development. In May of this year, Dougherty Funding, LLC closed a $15.1 million Construction loan arranged for St. Paul Hotel Ventures, LLC.

General Contractor Weis Builders has started construction on the 0.94 acre lot (adjacent to the fire station) where a 5-story, 100 room Residence Inn by Marriott will be located at 200 Grand Avenue.

While re-development of the historic firehouse is in the early stages, the plan is to preserve the Hope Engine Company #3 structure as a standalone building and link it to the hotel via an outdoor patio. Plans for the interior include a 2,100 square foot wine bar on the first floor and office space on the second floor. FCF staff have a great view of this historic transformation because it is taking place on a daily basis right outside our window.

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