Florida Employment Classification

[These are articles are for information purposes only and are not intended for legal or tax advice.  They provide general information about 1099 and W-2 Employment classifications as they relate to different states.  While efforts are made to ensure accuracy and completeness, it's critical that anyone seeking advice or up-to-date information on these topics consult their own independent tax or employment lawyer.]

In Florida, the factors used to determine if a worker is classified as a 1099 independent contractor or a W-2 employee include:

1. Degree of control the employer has over the worker's tasks and schedule.
2. Whether the worker is engaged in a distinct occupation or business.
3. Whether the worker is supplied with tools and equipment.
4. If the employer has a significant level of control over their tasks and schedule
5. If they are performing work that is integral to the employer's business

A dental hygienist or assistant might be classified as a 1099 independent contractor when providing temporary work in a dental office if the following circumstances apply:

1. They are operating their own business and providing services to the dental office as a contractor rather than an employee.
2. They are responsible for their own taxes, insurance, and other business expenses.
3. They set their own schedule and have control over how they complete their tasks.
4. They bring their own equipment and supplies needed to perform their job.
5. The dental office does not provide any training or supervise the hygienist or assistant.
6. The dental office do not provide benefits such as health insurance, vacation pay, and retirement plans to the hygienist or assistant
7. The dental office and hygienist or assistant have a written agreement that states the hygienist or assistant is an independent contractor.

It is important to note that even if some or all of these conditions are met, the final determination of whether a worker is an employee or independent contractor depends on the specific facts of each case and the applicable laws.

If a dental hygienist or assistant is incorrectly misclassified as a 1099 independent contractor, there can be several risks for the worker, including:

1. Loss of employee benefits: As a 1099 independent contractor, the hygienist or assistant would not be eligible for benefits such as health insurance, vacation pay, and retirement plans that are typically provided to employees.

2. Lack of protection under labor laws: Independent contractors are not protected under many federal and state labor laws, such as those governing minimum wage, overtime pay, and discrimination.

3. Liability for self-employment taxes: If a hygienist or assistant is misclassified as an independent contractor, they may be responsible for paying their own self-employment taxes, which can be a significant financial burden.

4. Limited ability to file for unemployment: Independent contractors are not eligible for unemployment benefits, so if the hygienist or assistant is let go or their contract is not renewed, they would not be able to file for unemployment.

5. Risk of legal action: If the dental office is found to have misclassified the hygienist or assistant, the worker may be able to take legal action to recover lost wages and benefits.

6. Lack of protection under worker's compensation: Independent contractors are not covered by worker's compensation and if they get injured while working it will be their responsibility to pay for the medical expenses.

It's important to note that dental hygienists or assistants and their employers should be aware of the classification laws and should consult with legal professionals if they have any doubts, to ensure that they are classified correctly.

If an employee is misclassified as an independent contractor, there can be a variety of negative consequences for both the employee and the employer. In general, the employer bears the risk if the employment is misclassified. Some of the risks that employers may face include:

• Liability for unpaid taxes: If an employee is misclassified as an independent contractor, the employer may be liable for unpaid taxes, including Social Security, Medicare, and unemployment taxes.

• Liability for unpaid benefits: Employers may be liable for benefits such as workers' compensation, unemployment compensation, and vacation pay that should have been provided to the employee but were not.

• Liability for discrimination and other employment law violations: Employers may be liable for discrimination and other employment law violations if the misclassification resulted in the employee not being protected under those laws.

• Liability for overtime and minimum wage violations: Employers may be liable for overtime and minimum wage violations if the employee is entitled to these benefits but did not receive them because of misclassification.

• Liability for penalties and fines: Employers may face penalties and fines for misclassifying employees, particularly if they do so intentionally or repeatedly.

It's worth noting that employees can also face negative consequences if they are misclassified as independent contractors, such as loss of benefits and protections, and lack of legal recourse in case of violations. Misclassification can also have negative impacts on the government, particularly if taxes and benefits aren't being paid as they should be.

It's also important to note that employers are held liable for misclassifying workers, and that the dental hygienist or assistant should consult with a legal expert and the state's labor department if they suspect that they have been misclassified.

Regardless of how a worker is classified, the worker can still be protected by certain state and federal laws, such as anti-discrimination laws and laws related to safety and health in the workplace. Employers should consult with legal counsel to ensure compliance with all applicable laws.

Side Note:  Occasionally we've heard comments and opinions that, depending on the state, being classified as a 1099 Independent Contractor might put a dental hygienist's license in jeopardy if their state licensure requires their provision of care to be performed under the direction and oversight of a licensed dentist. 

In short, the opinion goes something like this:  "If you are a 1099 Independent Contractor, then you were self-determinant in the provision of your care and not under the direction a dentist.  But your license requires you to provide care only under the direction of a licensed dentist.  So your license is now at risk."   

We at TempStars care very much about patient care, state regulations, doing the right thing and that dental care is only provided under valid circumstances by licensed professionals.  So when we heard this, we made every effort to investigate and dig into the validity of this opinion.   

Despite very extensive research and inquiry with dental professionals and dental hygiene licensing bodies, we found no evidence to support this.  The hygienist licensures indicated their priority concern was whether a licensed dental hygienist was performing their duties according to their state regulations and guidelines. 

But we as a team and organization are dedicated to supporting dental professionals and providing the resources needed for success - so if you or anyone you know has had their dental hygiene license disciplined or suspended solely due to the nature of an employment relationship being misclassified, we would very much like to know. 

Please contact our team at help@tempstars.com and we are offering a reward to any licensed U.S. dental hygienist for the details of their story and situation so that we may help further shine light on this topic and provide the best and most accurate resources and information possible.  Thank you!