Avoid Misclassification: Leveraging Outcome-Based SOW to Retain 1099 Contractors


March 21, 2024

In our last blog we talked about how large enterprises can stay compliant in the UK with the IR35 reform which is here to stay. In the USA, there is also a similar challenge to hiring independent workers compliantly. There is a solution which we will explore in more detail here.

The Department of Labor’s (DOL) adoption of the “economic reality” test, has placed a renewed emphasis on the precise classification of workers. This regulatory environment makes it increasingly challenging to classify workers as independent contractors under the Fair Labor Standards Act (FLSA). As companies navigate this complexity, adopting an outcome-based Statement of Work (SOW) model emerges as a strategic approach to retain 1099 contractors while ensuring compliance.

Understanding the Economic Reality Test

The economic reality test scrutinizes the nature of the working relationship to determine a worker’s classification. It evaluates the economic dependence of the worker on the employer, the degree of investment by both parties, the permanence of the relationship, the level of control exercised by the employer, the significance of the work to the business, and the worker’s skill and initiative. This holistic assessment aims to accurately classify workers, ensuring they receive appropriate protections and benefits.

The Implications of Misclassification of 1099 Contractors

Incorrectly classifying employees as independent contractors can have severe repercussions, including legal and financial liabilities. Employers could face fines, legal fees, back pay, interest, and additional taxes. Moreover, misclassification risks damaging the company’s reputation and financial health. Therefore, correctly identifying workers as either W-2 employees or 1099 contractors is not just a regulatory requirement but a critical business imperative.

Embracing Outcome-Based SOW for 1099 Contractors

An outcome-based SOW model can be a powerful tool for US based companies to retain 1099 contractors while adhering to the new DOL classification rules. Here’s how:

1. Focus on Project-Based Engagements

By structuring work around specific projects with defined outcomes and deliverables, companies can underscore the independent nature of the contractor’s role. This approach aligns with the economic reality test by emphasizing the contractor’s business-like initiative and the temporary nature of the relationship.

2. Emphasize Mutual Investment and Risk

Outcome-based SOWs can highlight both parties’ investments in the project and the shared risk. This mutual engagement supports the narrative of an independent contractor running their own business, distinct from the employer’s operations.

3. Maintain Flexibility and Autonomy

An outcome-based model inherently allows contractors to retain control over their work processes and schedules, provided they meet the agreed-upon outcomes. This degree of autonomy is a key factor in distinguishing contractors from employees under the economic reality test.

4. Clear and Comprehensive Documentation

A well-drafted outcome-based SOW serves as a critical document that clearly outlines the project scope, milestones, deliverables, and payment terms based on results rather than hours worked. This documentation is invaluable in demonstrating compliance with labor classification standards.

Navigating Conversion and Compliance

For companies considering converting some 1099 contractors to W-2 employees, a transparent and structured approach is essential. This includes clear communication, updating internal systems, ensuring tax compliance, and possibly adjusting compensation and benefits to reflect the change in status. Moreover, compliance with state-specific labor laws and the Affordable Care Act (ACA) reporting requirements becomes pertinent.


As US companies face the complexities of labor classification under the DOL’s new rule, adopting an outcome-based SOW model offers a pathway to retaining 1099 contractors in a compliant manner. This approach not only aligns with regulatory expectations but also preserves the flexibility and independence valued by contractors. By strategically implementing outcome-based engagements, companies can navigate the classification landscape confidently, ensuring both compliance and contractor engagement.

As in the UK, a change of behaviour is needed by enterprises and contractors alike to stay compliant. Working on outcome-based SOW with payments aligned to milestones and not hours worked can be a solution if implemented properly. Gigged.AI have built an Open Talent Marketplace that will draft an SOW while taking care of payments and compliance.

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