California Assembly Bill 5 (AB5), went into effect on January 1, 2020 and requires companies that hire independent contractors to reclassify them as employees, with a few exceptions. The biggest question regarding AB5 was how to differentiate between an employee and a contractor. The California Supreme Court created a three-way test to help, commonly called the ABC Test:
The worker can perform services free of the company’s control and/or direction.
The worker performs tasks that are outside of the company’s regular activities.
The worker is also engaged in an independently established trade or business.
California Assembly Bill 5 (AB5) extends employee classification status to gig workers.
Companies must use a three-pronged test to prove workers are independent contractors, not employees.
AB5 is designed to regulate companies that hire gig workers in large numbers, such as Uber, Lyft, and DoorDash.
On Aug. 10, 2020, a California judge ruled against Uber and Lyft for failing to comply with the law.
And on Sept. 4, 2020, the Calif. legislature passed—and Governor Gavin Newsom signed—Assembly Bill 2257, which exempts a long list of job categories from AB5 strictures. It went into effect immediately.
Among those exempted from the strictures are still and video photographers and editors, freelance writers, content contributors, editors, translators, fine artists, and musicians. One key change was the removal of caps for categories of freelancers that had limited the number of contributions they could make to an outlet, such as a website, without having to be reclassified as employees. Not exempted: Workers for gig-economy companies such as Lyft and Uber.
As usual, navigating the constantly changing legal landscape for independent contractor status can be very complicated. If your business uses, or is thinking of using, independent contractors to assist with any business functions, make sure you contact a legal professional to make sure you are staying compliant with the latest legal developments.
More than 70% of small businesses in America now have loan proceeds from the Paycheck Protection Program (PPP) to help retain employees during the current pandemic. The entire amount of a PPP loan is eligible to be forgiven if the funds are used for qualified expenses. Recent legislation liberalizes the terms of loan forgiveness for funds used for payroll, utilities and rent. It is now based on a 24-week period, not just eight weeks.
But how can you best position your company to fully benefit from PPP loan forgiveness? Here are five tips to help meet the challenge.
Restore your staff. If possible, restore the number of full-time equivalent (FTE) employees to previous levels by the safe-harbor due date of December 31 (extended from June 30). Bring back furloughed FTEs as soon as you can. Of course, this should fit into your overall business plan. If an employee does not return, document the refusal. All these actions will help when the forgiveness formula is applied to your loan.
Pile on payroll costs. Run payroll and other remaining qualified expenses—including mortgage interest, rent and utilities—on the last day of the 24-week period. This will enable your business to maximize the amount of loan forgiveness allowed under the calculation.
Reward employees. Consider paying out reasonable incentive amounts to maximize the forgiveness of payroll costs. The bonuses can even go to family members like your spouse or children. But remember that you can only count up to $100,000 of wages per person, pro-rated for the covered year, and you must be able to defend these payments as reasonable.
Use the simplified application form. There are two loan forgiveness forms – the regular form (Form 3508) and a simplified version called Form 3508EZ. Review both forms before deciding which one is right for your situation. For instance, there are fewer calculations on the simplified form with less documentation required. To qualify for the simplified form, you must meet at least one of these requirements:
You’re self-employed and have no other employees.
You didn’t reduce employee hours or reduce their wages and salaries by more than 25%.
You lost business due to health directives relating to COVID-19 and didn’t reduce employee wages and salaries by more than 25%.
Document everything. Once you receive PPP loan funds, keep supporting documentation on everything related to the loan. Document when you receive the loan, each time you spend part of the loan and accrued interest expense on the loan. Also keep copies of receipts and invoices to document all loan expenditures, including bank account statements and journal entries.
You may have started your business as a simple sole proprietorship that files its taxes as a Schedule C on your Form 1040. As your business grows, you may want to change the structure. Here are several scenarios where it may make sense to do just that.
Reasons to Create Business Entities
Establishing limited liability. The primary reason businesses form corporations and limited liability companies is to create a separate legal entity that provides legal protection. If your business receives a legal summons for a claim, for example, having limited liability may protect your personal assets like your home and car.
Hiring your first employee. Businesses are generally liable for their employees’ actions taken on behalf of the company. If an employee performs an act that causes an outside party to sue your business, the outside party can come after your personal assets to satisfy the lawsuit if you don’t have limited liability. You should, therefore, incorporate your business if you anticipate hiring your first employee in the near future.
Establishing credibility. Having LLC or Inc. after your business’s name conveys maturity in your business to customers and vendors.
Accessing credit and/or capital. Incorporating can also make it easier for your business to obtain financing through banks or investors. Banks want to see that your business is legitimate and not simply a hobby. Bringing in investors also requires a business form that allows you to do this. Individuals often co-mingle personal funds with business activity, making it hard to consider lending money.
What you need to do
There are several different business entities to consider, including corporations and limited liability companies. There are pros and cons to each entity that must be considered. Added to the complexity are constructing the correct legal filings and related tax obligations for sales tax, income taxes, unemployment and workers’ compensation.
The process of selecting the right structure for your business is not for the faint of heart. Develop connections with professionals that can walk you through this decision-making process.