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Tag Archives: nonemployees

October 31, 2017

Contractors and the CEO Pay Ratio

When I posted the results of the NASPP’s quick survey on the CEO pay ratio, the data I got the most questions on were the results for how companies are handling independent contractors in the calculation. When we conducted that survey, the SEC’s guidance seemed to indicate that some individuals that are treated as contractors for other purposes might be considered employees for purposes of the CEO pay ratio. That has now changed.

The SEC’s Original Position

The SEC’s original position was that the final rules permitted the exclusion of workers who are employed by and have their compensation set by an unaffiliated third party (e.g., leased employees). A CDI issued by the SEC in October 2016 clarified that some workers who are considered nonemployees for tax purposes might be considered employees for purposes of the CEO pay ratio.

The SEC’s Reversal

In the guidance issued in September 2017 however (see the NASPP alert “SEC Issues Guidance on CEO Pay Ratio“) the SEC relaxes their original position significantly, stating:

We believe it would be consistent with Item 402(u) for a registrant to apply a widely recognized test under another area of law that the registrant otherwise uses to determine whether its workers are employees.

In addition, the CDI issued on this question in 2016 has been withdrawn and the new guidance seems to suggest that reliance on the determination of employee status for tax purposes is sufficient to establish employment status for the CEO pay ratio.

The July-August issue of The Corporate Counsel notes that in addition to the test used under the US tax code (which is fairly complex) companies might rely on the determination under the Fair Labor Standards Act (FSLA) or other laws.

A Shift in Administration = A Shift in Position?

The SEC notes in Release No. 33-10415 that the shift in their position is due to concerns expressed by commenters. I don’t doubt that this is the case, but I also wonder if it is partly attributable to the Trump administration’s pro-business agenda. Obviously, one way for companies to improve their CEO pay ratio is to contract out lower paid positions (e.g., in gig-economy type arrangements). The SEC’s original position was an obstacle to this approach; the new position is much less so.

– Barbara

P.S.—I removed the chart on how companies are handling contractors from the quick survey results (in case you are wondering why you can’t find it). Now the that SEC’s position has been changed, companies are likely changing their approach and I don’t think our data on this particular question is reliable.

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April 4, 2017

FASB Exposure Draft on Nonemployee Accounting

The FASB has issued an exposure draft of the proposed accounting standards modification to bring awards granted to nonemployees under the scope of ASC 718. Here are six things to know about it.

  1. It’s Long.  At 166 pages, the exposure draft is longer than I expected.  Partly it’s so long because there a million places in ASC 718 where the FASB has to replace the word “employee” with “grantee” and the word “employer” with “grantor.”
  2. No More Mark-to-Fair Value Accounting. This is the most significant change: awards granted to nonemployees that are settled in stock will receive equity treatment, the same as awards granted to employees. This means the expense will be determined on the grant date and will be recognized over the service period, with adjustments only for forfeitures and modifications. No more mark-to-fair value accounting until the awards vest.
  3. Contractual Term Is Still Required for Valuation Purposes.  The FASB is under the impression that all options granted to nonemployees are fully transferable (seriously, I kid you not—they really think this). So they require that when computing the fair value of options granted to nonemployees, companies have to use the contractual term, not the expected term. The NASPP will be commenting about this, for sure. (If you are a company that grants options to nonemployees, I would like to know if your options are transferable or not—email me at bbaksa@naspp.com).
  4. The Expense Attribution Rules are Confusing. I had expected that expense for awards to nonemployees would be attributed in the same manner as awards to employees, but the exposure draft requires the expense to be attributed as goods or services are received, in the same manner that expense would be recorded for cash compensation.  I don’t know beans about accounting for cash compensation (unless its in the form or SARs or RSUs), so I don’t know what that means. Ken Stoler of PwC assures me that it simply provides more flexibility for awards to nonemployees and that companies can probably record expense in the same way they record expense for their employee awards.
  5. Performance Award Accounting is Improved. Currently, ASC 505-50 requires that expense for (non-market) performance awards granted to nonemployees be recorded at the lowest possible payout, which is frequently $0.  The exposure draft proposes to align the treatment of nonemployee performance awards with that of employee awards: that is, expense would be recorded based on the expected payout, which makes infinitely more sense.
  6. Comments Are Due By June 5. You can submit comments via the FASB website or email them to director@fasb.org. You can also mail a letter to the FASB but I’m not going bother listing the address here because who actually mails letters anymore?

– Barbara

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June 23, 2016

ASC 718: More Good News

The good news from the FASB just keeps coming. First, the simplification of ASC 718 and now the board has decided to include awards granted to nonemployees under the scope of ASC 718.

Background

Well over a decade ago, before even the adoption of FAS 123(R), the FASB decided that awards granted to nonemployees (except outside directors), were fundamentally different than awards granted to employees and should be accounted for differently.  “What,” you say, “that’s crazy! Why would they do that?”  I agree, it’s totally crazy and I can’t explain why the FASB does anything that they do. Really, stop asking me to explain their behavior.

The upshot of this decision is that awards to nonemployees were subject to variable/mark-to-market/liability treatment until vested. And the accounting for situations in which individuals changed employment status were so complicated that no one really knew how it was supposed to work.

The FASB’s Decision

Around the same time that the FASB decided to simplify ASC 718, they also directed the staff to investigate whether it would make sense for awards granted to nonemployees to be included within the scope of ASC 718.  Now, a year and a half later, they have decided that this does make sense.

This means that once the amendment is finalized, awards granted to all nonemployees (consultants, independent contractors, leased employees, etc.) will be accounted for in the same manner as awards to employees.  No more complicated accounting when individuals change employment status (unless the individual’s awards are modified in connection with the change in status, in which case, modification accounting is still required). And there’s a bunch of even crazier stuff companies were supposed to be doing for nonemployee awards once the awards were vested and to account for performance conditions that no one seemed to know about; now we never need to know about that stuff.

Companies that are currently accounting for awards granted to nonemployees will use the modified retrospective method for the transition (which we are all now familiar with once again, because we had to figure it out for the simplification project, see “Update to ASC 718: Transition“).

Not So Fast

We still have a long ways to go on this. First, the FASB has to issue an exposure draft of the proposed amendment, we all have to read it and comment on it (oh joy), the FASB has to consider all our comments (or at least pretend to), the staff has to draft the final amendment, the FASB has to vote to approve it, and companies have to adopt it.  So you aren’t going to be changing how you account for awards to nonemployees anytime soon.

Thanks to Elizabeth Dodge of Equity Plan Solutions for bringing this to my attention and to Ken Stoler of PwC for translating the FASB’s accounting-speak for me.

– Barbara

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April 14, 2016

The PCC and Nonemployee Awards

I was planning to blog more about ASU 2016-09 this week, but the FASB’s Private Company Council discussed accounting for awards granted to nonemployees at their meeting on Tuesday, so I’ve decided to blog about that instead. While the changes the FASB is considering in this area may have their genesis in simplifying things for private companies, they ultimately would apply to both private and public companies, so it’s worth reading about the meeting even for public companies.

What the Heck is the PCC?

The Private Company Council is the primary advisory body to the FASB on private company matters.

Good News

There were two bits of good news. The first is that the FASB staff recommends aligning the treatment of awards granted to nonemployees with the treatment of employee awards.  Moreover, their recommendation is for awards to all nonemployees, not just nonemployees providing similar services as employees (which the staff seemed to recognize would be a bit of a rat’s nest to figure out).

Secondly, overall, the PCC generally seemed to agree with the staff’s recommendation.  That’s certainly the official position. From the “Media Meeting Recap“:

The PCC generally supported aligning the models for nonemployee and employee share-based payments under GAAP.

Stuff I Found Surprising/Concerning

When I listen to FASB meetings, I often end up shouting at my computer like I am watching a televised sporting event.  Here are a few things that got a reaction from me.

I was a little surprised at how unfamiliar the PCC seemed to be with how start-ups use equity awards for nonemployees. One Council member suggested that it seemed to him that accounting for employee awards is harder than accounting for nonemployee awards. For a minute there, I thought he was going to suggest that the treatment of employee awards be aligned with that of nonemployees.  Luckily, most of the other Council members did not seem to agree with him.

The Council also was very concerned about companies buying goods (the example tossed about was buildings) with stock. Does this actually happen? Enough that the PCC needs to be so worried about it? I will admit that buying a building with stock is far outside my wheelhouse, so maybe it does happen all the time and maybe there are all sorts of valid concerns over how the transaction is accounted for that justify keeping this situation outside the scope of ASC 718.

Another thing I didn’t know is that the current guidance on accounting for nonemployee awards stipulates that if vesting is contingent on performance conditions, the interim estimates of expense are based on the lowest possible aggregate fair value, which is $0 if the award will be forfeited in full if the performance conditions aren’t met. 1) Who knew? 2) Are companies actually granting performance awards to nonemployees?

The Most Surprising Thing

Only one member of the PCC is located west of the Mississippi, which explains A LOT. (And, in general, all of the FASB advisory groups seem to be heavily weighted towards the east coast, which explains even more.) The one Council member from the west coast is from Portland. Nothing against Portland, but given the proliferation of start-ups here in Silicon Valley, it seems like maybe the FASB ought to find an accounting practitioner from this area who works with starts-up to be on the Council. Equity compensation can’t be the only area where technology start-ups do things differently.

– Barbara

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March 8, 2016

Stock Plan Grab Bag

For today’s blog, I have a few unrelated developments in stock compensation.

HSR Act Thresholds
Good news: now executives can acquire even more stock! Under the Hart-Scott-Rodino Act, executives that acquire company stock in excess of specified thresholds are required to file reports with the Federal Trade Commission and the Department of Justice.  The FTC has increased the thresholds at which these reports are required for 2016 (the thresholds are adjusted every year).  See the memo we posted from Morrison & Foerster for the new thresholds, which are effective as of February 25, 2016.

If you have no idea what I’m talking about, check out our handy HSR Act Portal.

Nonemployee Accounting
More good news!  The FASB is still reconsidering the accounting treatment of awards issued to nonemployees.  You may recall that, as second phase of the ASC 718 simplification project, the Board directed the FASB staff to research whether it would make sense to bring awards nonemployees under the scope of ASC 718, if not for all nonemployees, than at least for those who provide services that are similar to employee services.  In December, the FASB staff presented its research to the Board and the Board directed the staff to continue its research.  So the possibility of awards to nonemployees eventually being accounted for in the same manner as awards to employees is still on the table.

ASC 718 Update
And while we’re on the topic of ASC 718, no word yet on when the final update will be issued for phase 1 of the simplification project.  As of 12:32 AM today, the FASB website still lists the estimated completion date for this project as Q1 2016, which means we could see it any day now. However, I have heard unsubstantiated rumors that it may push into Q2, so don’t start holding your breath just yet. Personally, I’m betting on the week of March 21, because I’m presenting on it twice that week: once at the 12 Annual CEP and Silicon Valley NASPP Symposium and later in the week for a Certent webinar.

– Barbara

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April 21, 2015

Employment Status Changes, Part II

Last week, I covered the basic rules that apply for tax purposes when options are exercised or awards pay out after an individual has changed status from employee to non-employee or vice versa.  Today I discuss a few more questions related to employment status changes.

Is it necessary that the consulting services be substantive?

When employees change to consultant status an important consideration is whether the consulting services are truly substantive.  Sometimes the “consulting services” former employees are providing are a little (or a lot) loosey goosey (to use a technical term). For example, sometimes employees are allowed to continue vesting in exchange for simply being available to answer questions or for not working for a competitor.  It this case, it’s questionable whether the award is truly payment for consulting services.

A few questions to ask to assess the nature of the consulting services former employees are performing include whether the former employee has any actual deliverables, who is monitoring the former employee’s performance and how will this be tracked, and will the award be forfeited if the services are not performed.

If the services aren’t substantive, it’s likely that all of the compensation paid under the award would be attributable to services performed as an employee (even if vesting continues after the employee’s termination) and subject to withholding/Form W-2 reporting.

Is the treatment different for an executive who becomes a non-employee director?

Nope. The same basic rules that I discussed last week still apply. The only difference is that I think it’s safe to presume that the services performed as an outside director will be substantive (unless the director position is merely ceremonial).

What about an outside director who is hired on as an executive?

The same basic rules still apply, except in reverse.  For options and awards that fully vested while the individual was an outside director, you would not need to withhold taxes and you would report the income on Form 1099-MISC, even if the option/award is settled after the individual’s hire date.

For options and awards granted prior to the individual’s hire date but that vest afterwards, you’d use the same income allocation method that I described last week. As I noted, there are several reasonable approaches to this allocation; make sure the approach you use is consistent with what you would do for an employee changing to consultant status.

What about a situation where we hire one of our consultants?

This often doesn’t come up in that situation, because a lot of companies don’t grant options or awards to consultants. But if the consultant had been granted an option or award, this would be handled in the same manner as an outside director that is hired (see the prior question).

What if several years have elapsed since the individual was an employee?

Still the same; the rules don’t change regardless of how much time has elapsed since the individual was an employee.  The IRS doesn’t care how long it takes you to pay former employees; if the payment is for services they performed as employees, it is subject to withholding and has to be reported on a Form W-2.

So even if several years have elapsed since the change in status, you still have to assess how much of the option/award payout is attributable to services performed as an employee and withhold/report appropriately.

What if the individual is subject to tax outside the United States?

This is a question for your global stock plan advisors. The tax laws outside the United States that apply to non-employees can be very different than the laws that apply in the United States. Moreover, they can vary from country to country.  Hopefully the change in status doesn’t also involve a change in tax jurisdiction; that situation is complexity squared.

Finally, When In Doubt

If you aren’t sure of the correct treatment, the conservative approach (in the United States—I really can’t address the non-US tax considerations) is probably going to be to treat the income as compensation for services performed as an employee (in other words, to withhold taxes and report it on Form W-2).

What is the US tax reg cite for all of this?

My understanding is that none of this is actually specified in the tax regs—not even the basic rules I reviewed last week.  This is a practice that has developed over time based on what seems like a reasonable approach.

– Barbara

 

 

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April 14, 2015

Taxation When Employment Status Has Changed

For today’s blog entry, I discuss how stock plan transactions are taxed when they occur after the award holder has changed employment status (either from employee to non-employee or vice versa).  This is a question that I am asked quite frequently; often enough that I’d like to have a handy blog entry that I can point to that explains the answer.

The basic rule here is that the treatment is tied to the services that were performed to earn the compensation paid under the award. If the vesting in the award is attributable to services performed as an employee, the income paid under it is subject to withholding and reportable on Form W-2.  Likewise, if vesting is attributable to services performed as a non-employee, the income is not subject to withholding and is reportable on Form 1099-MISC.

Where an award continues vesting after a change in status, the income recognized upon settlement (exercise of NQSOs or vest/payout of restricted stock/RSUs) is allocated based on the portion of the vesting period that elapsed prior to the change in status.

For example, say that an employee is granted an award of RSUs that vests in one year.  After nine months, the employee changes to consultant status.  The award is paid out at a value of $10,000 on the vest date.  Because the change in status occurred after three-fourths of the vesting period had elapsed, 75% of the income, or $7,500, is subject to tax withholding and is reportable on the employee’s Form W-2.  The remaining $2,500 of income is not subject to withholding and is reportable on Form 1099-MISC.

What if the award is fully vested at the time of the change in status?

In this case, the tax treatment doesn’t change; it is based on the award holder’s status when the award vested. For example, say an employee fully vests in a award and then later terminates and becomes a consultant.  Because the award fully vested while the individual was an employee, the award was earned entirely for services performed as an employee and all of the income realized upon settlement (exercise of NQSOs or vest/payout of restricted stock/RSUs) is subject to withholding and is reportable on Form W-2.

This is true no matter how long (days, months, years) elapse before the settlement.  Under Treas. Reg. §31.3401(a)-1(a)(5), payments for services performed while an employee are considered wages (and are subject to withholding, etc.) regardless of whether or not the employment relationship exists at the time the payments are made.

What is the precise formula used to allocate the income?

There isn’t a precise formula for this.  We asked Stephen Tackney, Deputy Associate Chief Counsel of the IRS, about this at the NASPP Conference a couple of years ago.  He thought that any reasonable method would be acceptable, provided the company applies it consistently.

The example I used above is straight-forward; awards with incremental vesting are trickier.  For example, say an employee is granted an NQSO that vests in three annual installments.  15 months later, the employee changes to consultant status.

The first vesting tranche is easy: that tranche fully vested while the individual was an employee, so when those shares are exercised, the entire gain is subject to withholding and reportable on Form W-2.

There’s some room for interpretation with respect to the second and third tranches, however.  One approach is to treat each tranche as a separate award (this is akin to the accelerated attribution method under ASC 718).  Under this approach, the second tranche is considered to vest over a 24-month period. The employee changed status 15 months into that 24-month period, so 62.5% (15 months divided by 24 months) of that tranche is attributable to services performed as an employee. If this tranche is exercised at a gain of $10,000, $6,250 is subject to withholding and reported on Form W-2. The remaining $3,750 is reported on Form 1099-MISC and is not subject to withholding.  The same process applies to the third tranche, except that this tranche vests over a 36-month period, so only 41.7% of this tranche is attributable to services performed as an employee.

This is probably the most conservative approach; it is used in other areas of the tax regulation (e.g., mobile employees) and is also used in the accounting literature applicable to stock compensation.  But it isn’t the only reasonable approach (just as there are other reasonable approaches when recording expense for awards under ASC 718) and it isn’t very practical for awards with monthly or quarterly vesting.  It might also be reasonable to view each tranche as starting to vest only after the prior tranche has finished vesting.  In this approach, each tranche in my example covers only 12 months of service.  Again, the first tranche would be fully attributable to service as an employee.  Only 25% of the second tranche would be attributable to services as an employee (three months divided by 12 months).  And the third tranche would be fully attributable to services performed as a consultant.

These are just two approaches, there might be other approaches that are reasonable as well.  Whatever approach you decide to use, be consistent about it (for both employees going to consultant status as well as consultants changing to employee status).

Read “Employment Status Changes, Part II” to learn about additional considerations and complexities relating to changes in employment status.

– Barbara

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November 4, 2014

Amendments to ASC 718 – Part II

Last week, I blogged about the proposed amendments to ASC 718.  This week, I have some more information about them.

Is This a Done Deal?

Pretty much.  The FASB has already considered—and rejected—a number of different alternatives on most of these issues.  My understanding is that there was consensus among Board members as to each of the amendments and most of the changes aren’t really controversial, so we don’t expect there to be much debate about them.

Tax accounting is an exception, of course. This change is very controversial; in fact, the FASB considered this approach back when they originally drafted FAS 123(R) and ultimately rejected it is because of the volatility it introduces to the income statement.  So perhaps there will be some opposition to this change.

What’s the Next Step?

The FASB will issue an exposure draft with the text of the changes, then will solicit comments, make changes as necessary, and issue the final amendments.  I have hopes that we’ll see an exposure draft by the end of the year, with possibly the final amendments issued in the first half of next year.

ASC 718(R)?

No, the new standard will not be called “ASC 718(R),” nor will the amendments be a separate document. That’s the advantage of Codification.  The amendments will be incorporated into existing ASC 718, just as if they had been there all along. In a few years, you may forget that we ever did things differently.

What’s the Next Project?

This isn’t the FASB’s last word on ASC 718. They have a number of additional research projects that could result in further amendments to the standard:

    • Non-Employees:  In my opinion, the most exciting research project relates to the treatment of non-employees. As I’m sure you know, it is a big pain to grant awards to consultants, et. al., because the awards are subject to liability treatment until vested.  The FASB is considering whether consultants should be included within the scope of ASC 718, with awards to them accounted for in the same manner as employee awards. If not for all consultants, than at least for those that perform services similar to that of employees.
    • Private Companies: Another research project covers a number of issues that impact private companies, such as 1) practical expedients related to intrinsic value, expected term, and formula value plans and 2) the impact of certain features, such as repurchase features, on the classification of awards as a liability or equity.
    • Unresolved Performance Conditions:  Another project relates to awards with unresolved performance conditions. I’ll admit that I’m not entirely sure what this is.

That’s All, For Now

That’s all I have on this topic for now. You can expect more updates when we hear more news on this from the FASB.

A big thank-you to Ken Stoler and Nicole Berman of PwC for helping me sort through the FASB’s announcement. If you haven’t already, be sure to check out their Equity Expert Podcast on the amendments.

– Barbara

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January 28, 2014

Tax Questions, Answered

As is often the case at this time of the year, a lot of tax related questions have been popping up in the NASPP Q&A Discussion Forum lately.  For today’s blog entry, I try to quickly answer some of the questions I’ve seen the most frequently.

Former Employees
You have to withhold taxes on option exercises by and award payouts to former employees and report the income for these stock plan transactions on a Form W-2, no matter how long it has been since they were employed by the company.  The only exceptions are:

  • ISOs exercised within three months of termination (12 months for termination due to disability). 
  • RSAs paid out on or after retirement (because these awards will have already been taxed for both income tax and FICA purposes when the award holders became eligible to retire). Likewise, RSUs paid out on or after retirement that have already been subject to FICA are subject to income tax only.

If the former employees did not receive regular wages from the company in the current year or the prior calendar year, US tax regs require you to withhold at their W-4 rate, not the supplemental rate. In my experience, however, few companies are aware of this and most withhold at the supplemental rate because the W-4 rate is too hard to figure out.

Changes in Employment Status
Where an individual changes status from employee to non-employee (or vice versa) and holds options or awards that continue to vest after the change in status, when the option/award is exercised/paid out, you can apportion the income for the transaction based on years of service under each status.  Withhold taxes on the income attributable to service as an employee (and report this income on Form W-2).  No withholding is necessary for the income attributable to service as a non-employee (and this income is reported on Form 1099-MISC). 

Any reasonable method of allocating the income is acceptable, so long as you are consistent about it.

Excess Withholding
I know it’s hard to believe, but if you are withholding at the flat supplemental rate, the IRS doesn’t want you to withhold at a higher rate at the request of the employee. They care about this so much, they issued an information letter on it (see my blog entry “Supplemental Withholding,” January 8, 2013).  If employees want you to withhold at a higher rate, you have to withhold at their W-4 rate and they have to submit a new W-4 that specifies the amount of additional withholding they want.

Also, withholding shares to cover excess tax withholding triggers liability treatment for accounting purposes (on the grant in question, at a minimum, and possibly for the entire plan).  Selling shares on the open market to cover excess tax withholding does not have any accounting consequence, however.

ISOs and Form 3921
Same-day sales of ISOs have to be reported on Form 3921 even though this is a disqualifying disposition.  It’s still an exercise of an ISO and the tax code says that all ISO exercises have to be reported.

On the other hand, if an ISO is exercised more than three months after termination of employment (12 months for termination due to disability), it’s no longer an ISO, it’s an NQSO.  The good news is that because it’s an NQSO, you don’t have to report the exercise on Form 3921. The bad news is that you have to withhold taxes on it and report it on a Form W-2 (and, depending on how much time has elapsed, it might have been easier to report the exercise on Form 3921). 

The articles “Figuring Out Section 6039 Filings” and “6039 Gotchas!” in the NASPP’s Section 6039 Portal are great resources as you get ready to file Forms 3921 and 3922.

FICA, RSUs, and Retirement Eligible Employees
This topic could easily be a blog entry in and of itself, but it doesn’t have to be because we published an in-depth article on it in the Jan-Feb 2014 issue of The NASPP Advisor (“Administrators’ Corner: FICA, RSUs, and Retirement“).  All your questions about what rules you can rely on to delay collecting FICA for retirement eligible employees, what FMV to use to calculate the FICA income, and strategies for collecting the taxes are covered in this article. 

– Barbara

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September 27, 2011

Worker Misclassification

In a flurry of acronyms, the DOL (Department of Labor) and the IRS (I’m sure you all know what this acronym stands for) signed an MOU (Memorandum of Understanding) to improve agency coordination to address worker misclassification. A number of states are also participating in the agreement.

DOL and IRS Sign MOU
The agreement provides that the DOL will share information with the IRS and the participating states to address workers classified as contractors that should really be treated as employees. Worker misclassification is a target of the IRS’s current employment tax research study, which I’ve blogged about before (“IRS Auditing Stock Compensation,” June 7, 2011). This MOU will give the IRS additional information to use in its audits.

At the same time, the IRS also announced a voluntary worker classification settlement program, further demonstrating their focus on this issue.

Misclassifying a worker that should be an employee as a consultant can result in a host of legal issues, from benefits that the individual should have been accorded (such as the right to medical benefits and vacation time), tax withholding considerations, overtime pay, and unemployment benefits, to name just a few.

This probably seems like a topic that doesn’t impact stock plan administration that much. Worker classification is determined by HR and/or payroll; the stock plan administration group most likely just assumes their determination is correct and treats each individual’s options and awards accordingly. And, I can’t think of any reason why stock plan administration should question the classification made by HR/payroll; it’s unlikely you have sufficient information to determine an individual’s employment status.

But, while stock plan administration may not be involved in classifying workers as employees or consultants, you should be aware of the impact misclassification can have on stock compensation awarded to the individuals in question.

Tax Withholding on Options and Awards

Of course, the first issue that comes to mind is tax withholding. Individuals classified as consultants aren’t subject to tax withholding.  If these individuals should have been treated as employees, however, then taxes should have been withheld on all of their compensation, including their NQSOs and stock awards.  Failure to withhold the appropriate taxes can result in penalties to the company up to the amount of the taxes that should have been withheld, as well as interest and administrative penalties. 

In addition, the company should have made matching FICA payments on all of the individual’s compensation, also including NQSOs and stock awards.  This is even more of a mess because consultants don’t pay FICA, they pay self-employment tax, which is equal to both the individual and company portion of FICA.  The misclassified workers will have overpaid their taxes because, as employees, they would only have been responsible for the employee portion of FICA.

ESPP

The company’s Section 423 ESPP is a significant concern.  By law, substantially all employees of the company have to be allowed to participate in the ESPP, but, of course, also by law, consultants aren’t permitted to participate.  Where consultants should have been treated as a employees, however, it is likely that they should have been permitted to participate in the ESPP.  Where an individual that should have been allowed to participate is excluded from the ESPP, the entire offering(s) that the individual should have been allowed to participate in can be disqualified.  A mistake here could impact not just the misclassified individual but all other employees participating in the ESPP.  When assessing your company’s risk with regards to worker misclassification, this is an important consideration. 

Thanks to McGuireWoods for the alert that gave me the idea for this blog entry.

Conference Hotel Almost Sold Out
The 19th Annual NASPP Conference is quickly approaching and the Conference hotel is nearly sold out. The Conference will be held from November 1-4 in San Francisco. The last Conference in San Francisco sold out a month in advance–and that was without the reality of Dodd-Frank and mandatory Say-on-Pay hanging over our heads. With Conference registrations going strong–on track to reach nearly 2,000 attendees–this year’s event promises to be just as exciting; register today to ensure you don’t miss out.

NASPP “To Do” List
We have so much going on here at the NASPP that it can be hard to keep track of it all, so I keep an ongoing “to do” list for you here in my blog. 

– Barbara

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