1099 vs W-2 workers comp rules in North Dakota
Individuals classified as independent contractors are generally not considered employees for workers' compensation purposes, provided they meet specific criteria defined by WSI to establish an independent contractor relationship. Coverage threshold: All employers with employees Verified 2026-05-09.
What counts as a 1099 vs W-2 in North Dakota?
Individuals classified as independent contractors are generally not considered employees for workers' compensation purposes, provided they meet specific criteria defined by WSI to establish an independent contractor relationship.
The practical test most carriers and North Dakota regulators apply is the right-to-control test: who decides when, where, and how the work gets done. Workers who set their own hours, supply their own tools, work for multiple clients, and absorb their own profit-or-loss risk look like 1099 contractors. Workers who clock in, use your equipment, take direction on methods, and depend on a single client for income look like W-2 employees, regardless of what the contract says.
Why this matters for your premium
Workers comp premium is rated on payroll. If you pay a worker as a 1099 but the North Dakota workers comp bureau or your carrier later reclassifies them, the premium is recalculated retroactively, often back to the start of the policy. Most carriers also charge 50 to 100 percent of the missing premium as a penalty plus interest. North Dakota adds: Employers failing to provide coverage are subject to fines, penalties, and may be held personally liable for the full cost of any employee injuries or illnesses.
How to defend a 1099 classification at audit
Keep three things on file for every 1099 you pay: a written independent contractor agreement that documents independent control, a certificate of insurance from the contractor's own workers comp policy (or a state-issued exclusion form), and proof the worker advertises services to other clients. Auditors in North Dakota typically look at how many other clients the contractor served during the policy period, whether the contractor invoiced against a structured rate, and whether the contractor absorbed expenses such as fuel, materials, or insurance.
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FAQs
Are 1099 contractors covered by workers comp in North Dakota?
Individuals classified as independent contractors are generally not considered employees for workers' compensation purposes, provided they meet specific criteria defined by WSI to establish an independent contractor relationship.
Who has to carry workers comp in North Dakota?
All employers with employees
What is the penalty for misclassifying employees as 1099 in North Dakota?
Employers failing to provide coverage are subject to fines, penalties, and may be held personally liable for the full cost of any employee injuries or illnesses. Misclassification adds the back premium owed plus interest, often retroactive to the start of the misclassified worker's tenure.
Am I liable for my subcontractors workers comp in North Dakota?
A general contractor is responsible for ensuring that subcontractors carry workers' compensation coverage for their employees. If a subcontractor does not have coverage, the general contractor may be held liable for injuries to the subcontractor's employees.
What happens at audit if a 1099 looks like a W-2 in North Dakota?
If your carrier audits payroll and finds a 1099 worker who acted like an employee (set hours, used your tools, took direction on the work), the auditor can reclassify them as a W-2 retroactively. Premium is recalculated as if the worker were on payroll the entire policy period, plus interest. Keep certificates of insurance for every 1099 you pay, and have written contracts that document independent control over hours, tools, and methods.