*This content is not tax, legal, or accounting advice.*
That’s a great question!
At first glance, it may seem that it’s not your problem whether the agency nurses who work at your building are W-2 or 1099 with their respective agencies. However, the National Labor Relations Board is in the process of setting new standards for joint employment that may affect how agency nurses are perceived by the government.
If two employers, for example, you (the facility) and the 1099 agency, both determine a nurse’s conditions of employment, like…
- Workplace health and safety
….you may be considered a joint employer of the nurse.
If your facility is perceived as a joint employer of the 1099 agency staff in your building, you will be liable for the National Labor Relations Act obligations as an employer. This includes:
- Overtime paid for every hour worked over 40 hours in a work week
- Being sued by the agency nurse
- Potentially owing back wages, penalties, and fines
- Paying benefits such as insurance, retirements and paid time off
- Worker compensation coverage
The issue is currently in the pre-proposal stage and is expected to move to the next stage in December 2023.
To avoid the risk of legal liability over the misclassification of 1099 contractors at your facility, we highly recommend you ensure your agency nurses are W-2 nurses, like ESHYFT, and not 1099 contractors, like other agencies.
ESHYFT is proud to be an employer of W-2 nurses, because we firmly believe that W-2 is the right classification of per diem nurses and is the approach that is most beneficial to nurses in the long run. Read more on W-2 stance here.