What is Employee Misclassification?

Technology and globalisation now provide companies and workers alike with a plethora of convenient work trends. From remote work solutions and work-from-home to the rise of auto-entrepreneurs, today’s workforce is more diverse than ever before, and the job market is all the richer for it. Such solutions allow businesses to have their pick of in-house workforce, remote employees, or independent contractors and consultants, according to their own unique needs.

Indeed, prior to the Covid-19 pandemic, independent contractors already accounted for 1/3 of the workforce. With this event acting as a catalyst for an even faster rise of the gig economy, balancing the employee-to-freelancer ratio appears to be one of the wisest choices for any business.

This opportunity, however, entails an accrued need for vigilance against a common, yet easily avoidable mistake: misclassification of employees. It is also referred to as independent contractor misclassification, which means the exact same thing: the act of erroneously classifying an employee as an independent contractor.

Why is it such a serious mistake?

Employing a worker and working with a freelancer carry very different implications. In the employer-employee relationship, the employer owes several obligations to the employee: guaranteeing a salary; paying benefits, pensions and compensations as need be; granting paid leave according to local legislation; and often deducting taxes directly from the employee’s salary. Such duties do not exist between a company and a freelancer, as it would all be a simple matter of contract.

These important differences have often prompted ill-intentioned employers to take advantage of the difference between these two terms. They employed workers but classified them as independent contractors with the sole aim of avoiding responsibility for taxes, benefits, or any other emoluments owed to the employees, which led misclassification of employees to also be known as “sham contracting”.

This error, whether it comes from a genuine clerical mistake or is done purposefully, is both frowned upon and unlawful, and entails heavy penalties. It also negatively affects the reputation of a company, as it tends to demonstrate major compliance weaknesses (in terms of labour law), and could also insinuate that the company does not care for employee welfare as it should.

Are you currently guilty of Independent contractor misclassification?

It can be easy to fall into this trap in all good faith. Identifying whether this scenario applies to you may therefore be confusing. Starting with these four questions may help you in determining whether or not your workforce is correctly registered.

• Hierarchy: How independent is the worker, and what is their decision-making scope? The key qualifying criteria of a contract worker is the absence of hierarchy – their only accountability and duties are those stipulated in the contract, but they have no superiors within the company.

• Exclusivity: Does your contract prevent them from working with other people? Such restrictions are pertinent to an employer-employee relationship.

• Termination: What is the mode of termination, and could the worker terminate their contribution without notice?
• Benefits: What about sick leave, insurance, bonuses and social security?

These criteria, however, are in no way exhaustive. They are also subject to subtleties. For example, in the case of termination, it could be hard to distinguish between an employee with a “contrat à durée déterminée”, which is legally binding in Mauritius, and an independent contractor with a long-term mission, for example, to meet the company’s training needs over a year. 

When planning for expansion in the African continent, with a hybrid workforce, it is therefore important to properly identify each collaborator, and knowing the exact laws that apply to each category is key to smooth operations and a good reputation. 

5 tips to avoid independent contractor misclassification

1. Correctly identify contractors

As mentioned earlier, many factors can help you distinguish between an employee from an independent contractor, from their independence and ability to take leave days (without needing your permission) to whether or not you provide them with equipment.

2. Master domestic laws

When thinking of expanding, it is important to bear in mind that the issue of employee classification is manifold when it comes to law. Mastering local contractual law, labour law and tax law is key to compliance…  This brings about the third tip.

3. Act under expert advice

When in doubt, always get an expert’s opinion, which is time-saving, far more cost-effective, and safer than trying to learn all about it yourself. Your decisions will then stand guided by employment and legal experts, which minimises the risk of committing misclassification of employees. They may even come up with better solutions to cater for your specific hiring needs.

4. Train Your Staff

One of these solutions often includes training your payroll staff in these matters. Indeed, while having experts advise you on complex matters is the best bet, simultaneously training your staff to handle simpler scenarios is the key to efficient operations and cost optimisation.

5. Use an Employer of Record

If all of the former options seem time, resource and energy-consuming, you might opt for this one tip that combines them all, whilst eliminating your responsibility to manage all of it and set up the required monitoring structures.

Instead, delegate these duties to an Employer of Record for a seamless experience! Indeed, as an Employer of Record, Africa HR alleviates the heavy burden of compliance (and liability) to complex international employment regulations. Our teams of Legal and HR experts will take over the practical, administrative, and compliance aspects of onboarding and workforce management, as they help you navigate the ever-changing labour laws and regulatory practices all over the continent.

Compliance tools and mechanisms will give you timely updates of any regulatory changes for effortless compliance with domestic laws, so that you may dedicate yourself fully to your core activity in total peace of mind.