HMRC soft landing + IR35 Insurance + preparing for BAU = Confused?

Everything you need to nail the final sprint to April 6th 

Join Workr Compliance and STR Group at 10am on Thursday 11th March to get essential clarity on compliance, insurance and what BAU looks like post April…

Hosted by Andrew Webster, Founder and Director at Workr Compliance, who will be joined by David James, Engineering Programme Director at STR Group and former IR35 Project Lead at WORLEY, this session will provide actionable insights on:

With confusion still evident in the marketplace, Andrew and David will provide clarity to engagers (end clients) on three key areas of IR35: HMRC’s soft landing, insurance and preparing for BAU. They will provide their experience-led advice and best-in-class guidance to engagers going through the latter stages of preparing for 6th April – and indeed beyond. The session will explore the key considerations including what should be done, by when and with whom and provide you with an opportunity to have any burning questions you may have answered. 

With only 16 working days left before the Reform can you afford to miss out? 

NOTE: If you are cannot make it on the day, you can still register to receive a free recording after the session. 

RSVP

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IR35 insurance – Who needs it?

HMRC has issued its latest update on the IR35 Off Payroll Private Sector Reforms, all but confirming that the reforms will come into effect on the 6th April 2021.

HMRC has confirmed what it describes as a soft landing for affected parties for the first 12 months following implementation, emphasising compliance and support. In essence, this means that HMRC will take a lenient approach with parties where they believe mistakes made during the process are genuine.

Whilst this represents an olive branch from HMRC to assist with the impact of the IR35 private sector reforms, many large scale engagers, in the financial sector, for example, have still adopted an ultra-cautious approach and made policy statements ruling out the use of personal service companies.

So how can insurance play a part in changing this thought process?

Risk-averse to new responsibilities

With the reforms shifting responsibility for IR35 determinations from contractor to engager, many engagers have taken an ultra-cautious approach in response.

Even though the immediate financial liability will sit with the fee payer (possibly the engager but more likely the agency), the reforms clearly state that the engager retains responsibility for taking reasonable care in how they handle the process. Failure to do so could still land liability square at the engagers door.

This stipulation and responsibility seem to have been a step too far for some engagers. Ironically, this is even the case for some of the financial service organisations that provide insurance policies for off-payroll workers against IR35-related investigations.

Compliance and insurance

The challenge for engagers is how this approach will affect their capability to attract and retain the flexible talent they have utilised and relied upon previously.

The consensus suggests that contractors will seek assignments deemed outside of IR35, either with small businesses where the reforms do not apply or medium to large businesses with a fair and reasonable determination process.

The alternative, if a PAYE solution is the only choice, is a significant hike in rates and cost to the engager. Neither of which would seem very appealing propositions due to the potential cost of business lost or reduction in profits.

However, a robust compliance process underpinned with a comprehensive insurance policy could eradicate almost all of the engager’s risk. Indeed, engagers with a robust due diligence process and some qualified, professional support should have little trouble identifying a supply chain and process that includes an insurance provision.

Engaging with fee payers with insurance protection should leave engagers with very little to fear from HMRC’s transfer of debt provisions and everything to gain from a talented contractor workforce keen to provide their services.

IR35 insurance policies can be hard to come by, such is the ambiguity surrounding the legislation. In fact, some insurers are even reluctant to provide cover where the government’s own CEST tool is used to conduct determinations.

Policies will therefore fall into one of two categories. One will be policies that contain weak prospect of success clauses that effectively provide underwriters with an opt-out if they deem the case weak. Engagers should avoid these policies wherever possible.

The others will be policies provided on the strength of the compliance process and will usually include First and Upper-tier tax tribunal representation, cover for previous tax years for up to six years, and cover all defence costs, including liabilities and penalties.

All of which should give engagers confidence and peace of mind that the risk of engaging contractors outside of IR35 is mitigated.

What now?

Our Founder and Director of Workr Compliance, Andrew Webster, recently hosted a webinar with Markel Tax on IR35 insurance. For a complimentary recording of the webinar, please follow the link – https://workrgroup.com/demystifying-off-payroll-working-for-the-entire-contractual-chain-whilst-protecting-your-interests/


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Around IR35 in eighty days

Workr Compliance is an impartial consultancy that provides advice and support on IR35 and the compliant management of a freelance contractor workforce. So, you’ll be right in thinking, what that has to do with a story written in the mid-1800s?

If you’re unfamiliar with the title, Around the World in Eighty Days is an adventure story written by the famous French author, Jules Verne. It was first published in France in 1872 and followed the story of Phileas Fogg, a wealthy, English eccentric from London. Fogg accepts a wager with his friends at the aptly-named Reform Club that he can circumnavigate the world in 80 days.

So what has this got to do with IR35? Well, if your business utilises freelance contractors, you’ve now got less than 80 days before the IR35 legislative reforms take effect in the private sector. And, like Phileas Fogg, who gambled £20,000 (over £2M today), you’ll be taking a substantial financial risk if you fail to prepare appropriately. 

There’s just no way of getting around IR35 — it’s here to stay.

You’ve prepared for the reforms already, haven’t you?

The IR35 reforms were originally due to take effect in April 2020, so many businesses have already taken steps to prepare for the changes. However, there were conflicting and ambiguous views in the lead up to April 2020 with many questioning the strategies implemented by engagers.

Ten months have passed since the original date of the reforms, and the UK has faced the extraordinary challenge of the pandemic since. So, has your plan changed since April 2020? And, how have your business strategies changed in response to the pandemic?

With such considerable costs to the government associated with the pandemic, it seems reasonable to suspect that there will be a focus on all and any legislation relating to tax and tax avoidance.

Engagers and agencies that failed to observe reasonable care guidance or issued mass status determinations or blanket statements will need robust arguments to defend their actions should HMRC investigate. The consequences of not having appropriately prepared could be extremely costly.

Still time to reconsider?

Even though the clock is ticking, there is still time to review in preparation for the reforms.

With the additional pressures caused by the pandemic, engagers must ensure that they minimise their financial risk when the IR35 changes take effect.

Utilising contractors may prove key to completing critical projects, getting strategic objectives back on track or gaining competitive advantage. Those businesses that can demonstrate a fair and objective determination process will most likely stand the best chance of attracting the highest calibre contractors.

For those businesses that may have rushed a process through previously, or relied upon untested software models or off the shelf, vanilla solutions, there is still time to gain peace of mind and confidence that your IR35 plan is the right one for your business.

With the help of some expert guidance, it’s still possible to implement a robust and effective IR35 process that will offer the greatest chance of success with the smallest amount of risk.

Workr Compliance can support you with a quick and effective review of your contractor compliance and process.

With a genuine blend of people, process and technology, we can help develop a solution tailored to your industry requirements. We can help adapt an approach to your business strategies and objectives that is backed by comprehensive insurance and offers genuine and impartial collaboration with all parties in the supply chain.

Unlike Phileas, we’re not prepared to take the gamble.

For further help or advice please contact Andrew Webster, Director, Workr Compliance on 0208 10 60 000


Article by Andy Webster, Workr Compliance, Director


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Switching to an umbrella company can help you take control of your wellbeing

From talking to our contractors in recent months we know managing mental, physical and financial wellbeing throughout the COVID-19 pandemic has been a challenge.

Combine this with the upcoming reform to IR35 and it is no surprise that contractors currently offering their services through a limited company are worried about the potential impact to them and their families.

Many of our clients in this situation have already considered switching to become an umbrella company employee. This could be to better suit their own personal circumstances, a result of IR35 status determinations or agency or end-client stipulated contract requirements.

If you are currently considering your options we wanted to let you know there are numerous benefits to considering umbrella employment and in these uncertain times, they could be even more important to you.

Our service is personalised to your circumstances and focused to promote various areas of wellbeing to help you thrive and be at your best. These include support for your personal health, such as an always-available GP helpline, through to relieving the stress of financial worries by making you feel comfortable and in control of your own financial position.

Personal Health and Wellbeing  

  • 24/7 Private GP helpline, counseling service, prescriptions and mental health support for you and the family
  • Health assessments, specialist referral and access to non NHS health services
  • Online fitness, well-being and personal health classes
  •  £675 cash back per year for dental, optical and other qualifying treatments
  •  Discount gym membership
  •  Personal accident cover insurance

Financial Wellbeing

  • Compliant take-home pay backed by full employment rights including sick pay and maternity/paternity pay and option to roll up or retain holiday pay
  • One continuous employer for mortgage applications and credit
  • Flexible pension contributions via salary sacrifice
  • Access to daily payroll, advance facilities
  • Support with expenses opportunities
  • Professional Indemnity, Public and Employers Liability insurance

We constantly review these offerings to ensure a culture of contractor wellbeing is at the heart of everything we do. We believe this not only contributes towards keeping you healthy, productive, and achieving a positive work-life balance but also helps you engage with your agency, the end client, and our brand.

We understand that each and every umbrella employee is different and our account managers are committed to providing a bespoke service by getting to know you. Whilst our processes and technology help us do the work we do they will never replace these interpersonal relationships we enjoy. Just check out our Trust Pilot and Google Review scores for yourself.

If you are considering switching to umbrella, whatever your situation, we are here to discuss it and make it as easy as possible for you. Simply call us to discuss your needs with and one of our friendly and experienced team will do the rest.


Article by Gareth Murphy, Workr Umbrella, Head of Customer Experience


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Demystifying off payroll working for the entire contractual chain (whilst protecting your interests)

Workr Compliance and Markel Tax will be hosting an exclusive webinar, limited to 100 guests on Thursday 18th February from 10am to 11am.

The session will provide specialist insights on:

  • Understanding where the risk/liability lies
  • Anticipated enforcement; practical steps to remain compliant
  • What is IR35 Tax Investigation and Loss insurance and, why is it needed in the contractor recruitment supply chain?

Hosted by:

Andrew Webster, Founder & Director at Workr Compliance, will be moderating the discussion and joined by a leading IR35 and tax insurance expert:

Paul Mason, Head of Tax Partnerships at Markel Tax, will be providing a thorough overview of IR35 Tax Investigation and Loss insurance and the importance of having it in the supply chain.

The majority of Engagers are getting prepared for 6th April legislative changes and, indeed so are Fee Payers. Whilst preparations continue, a much anticipated discussion on indemnification of liability has raised its head over recent months. Workr Compliance and Markel Tax are aware that there is choice in the market for such insurance products, but why not hear first hand of ‘the whys and wherefores’ of obtaining it, in that it is not merely a tick box exercise but evidence of longer term compliance.

Lastly, there is much debate in the market as to ‘who will pay for the insurance?’ or indeed ‘is it actually needed?’ – have a platform to share your views amongst your peers on this subject matter.

Missed it? View the webinar recording

  • The password protected webinar recording is available here. Complete this form to receive a password.

    Please see our privacy notice for more information but where your enquiry may include Personal Data please confirm your consent to the use and storage of that data by the Workr Group for the purposes of your specific enquiry as Opted-In below, over and above any legal obligations we may have to store and process your data. You may at any time withdraw your consent by notifying our Data Protection Officer at dpo@workrgroup.com or by using the specific online form.

Learned through experience, delivering a compliant and robust IR35 Private Sector Reform project….

Workr Compliance and STR Group will be hosting an exclusive webinar, limited to 100 guests, on Thursday 4th February, 4pm – 5pm.

The session will provide specialist insights on:

  • Preparing for 6th April 2021; at what stage of project delivery should you be at with 47 working days to legislative change
  • What are the key components of ‘best in class’ IR35 project and?
  • Identification of probable ‘bottlenecks’ to project delivery on time and, what action can be taken

Hosted by:

Andrew Webster, Director at Workr Compliance, will be moderating the discussion and joined by leading compliance, project management, and employment status tax experts:

David James, former IR35 Project Director at WORLEY and now Engineering Programme Director at STR Group.

Sue Ollerenshaw, Director, Employment Tax Expert

The Private Sector is being told by many stakeholders to ‘prepare’, whilst it is sensible advice, it is potentially not the detailed advice from experience that is being gleaned and, that such detailed advice based on key learnings of delivery would be of greater value as we get closer each day to the 6th April!

The open discussion session will provide a platform for end client attendees to hear, first hand, the genuine challenges likely to be faced of delivering a IR35 project that meets HMRC Reasonable Care’ whilst not affecting day to day operational delivery.

We have a limited number of places available. RSVP by completing the fields to secure your place.

RSVP

  • We will send you an invitation to the webinar on receipt of this submission.

    Please see our privacy notice for more information but where your enquiry may include Personal Data please confirm your consent to the use and storage of that data by the Workr Group for the purposes of your specific enquiry as Opted-In below, over and above any legal obligations we may have to store and process your data. You may at any time withdraw your consent by notifying our Data Protection Officer at dpo@workrgroup.com or by using the specific online form.

IR35 changes – Maintaining a compliant supply chain

With the IR35 Reforms due to take effect in the UK private sector on the 6th April 2021, there has been a lot of speculation about the increase in the use of umbrella companies.

The decision to defer the IR35 changes earlier this year came as a massive relief to many organisations within the temporary labour supply chain. In our article, IR35 – deferred, not defunct! Workr Group outlined how this relief is likely to be shortlived with the reforms almost certain to take effect in 2021.

However, the deferral of the IR35 changes did give a clear indication of the strategies that contract users are likely to take in response.

Responses made in preparation for the original April 2020 IR35 changes indicated that many large scale engagers took an ultra-cautious, although potentially misguided approach.

Policy changes regarding the utilisation of contractors supplying their services via an intermediary (personal services company or Limited Company) or blanket statements determining all contractors as being caught by IR35, appeared prominent. Our previous article IR35 Changes – Blanket Statements Uncovered outlined some of the risks involved in these approaches.

As a result, the Umbrella company solution has been promoted as an alternative by those suppliers under pressure to retain their temporary labour business.

What is an Umbrella Company?

An Umbrella Company will employ a contractor in a similar way to any other employer. The contractor is a permanent employee engaged in working on a number of assignments. They are provided with a Contract of Employment under the Employment Rights Act 1996, granting full employment rights.

The umbrella company contracts with the client or agency and takes care of all the administration matters.

Umbrella companies are used by many contractors because they provide a simple, cost-effective and flexible operating structure.

All income is paid out through the PAYE tax system.

The umbrella will take care of all the administration, tax and payroll work for the contractor — providing insurances to cover the contractor working on an assignment.

The IR35 legislation does not apply to contractors engaged through an umbrella company, making the option more appealing to engagers.

How does the umbrella solution impact engagers?

The removal of the IR35 legislation, and it’s associated responsibilities, is likely to be an attractive proposition for engagers.

However, engagers presented with an umbrella solution should seriously consider the consequences before committing.

Whilst the umbrella solution appears to be the perfect diversion around the IR35 roadblock, there are still risks and responsibilities that the engager cannot relinquish.

Any engager making mass IR35 determinations or blanket statements, or enforcing an umbrella only policy, risk alienating themselves from the talent pool of contractors that legitimately provide their services through a personal service company.

Attracting and retaining top talent is already tricky enough, but contractors are far more likely to be attracted to engagers that offer a fair and considered IR35 determination process.

What are the risks to engagers of utilising an umbrella solution?

First and foremost, the engager still has a responsibility for ensuring that its temporary labour supply chain operates compliantly.

The engager must demonstrate that it has taken reasonable care in the construction and management of its supply chain. Considering reasonable practical ability and competence, this includes ensuring that tax and national insurances are administered and paid correctly.

Failure to demonstrate reasonable care could result in HMRC transferring debts up the supply chain to engagers where taxes are unpaid.

Whilst the umbrella solution is well established, and many providers have operated it compliantly for many years, there are still regular examples of umbrella models that represent tax avoidance schemes in the eyes of HMRC.

Engagers must be confident that such uncompliant models are not being practised and utilised within their supply chains as the financial and reputational risks could be substantial.

What should engagers look out for with umbrella solutions?

A compliant umbrella company should operate in line with UK tax law with contractors becoming employees and income being treated as employment income and taxed via the PAYE scheme. It will provide the contractor with statutory holiday and sick pay entitlements and is also likely to offer additional benefits such as healthcare and insurances.

Engagers should also look out for accreditations to bodies such as the Freelancer and Contractor Services Association (FCSA) – fcsa.org.uk, a self-governing body for umbrella companies that conducts regular and robust audits of its members, Workr Group included.

Umbrella schemes operated by providers with FCSA accreditation are assessed and investigated thoroughly to ensure compliance.

However, there are hundreds of providers in the umbrella marketplace, many operating without governance or accreditation. Subsequently, there have been many examples previously of schemes advertised as umbrella arrangement that, once inspected more closely, have elaborate payment arrangements that do not conform with UK tax law.

In particular, a more recent example has been exposed and labelled as the Mini Umbrella Company or MUC. In this case, hundreds of small limited companies are set up to exploit small business incentives such as the flat rate VAT scheme and the Employment Allowance.

In some cases such as the MUC, even the contractors are unaware of the structure of the umbrella model under which they are employed. It is easy to see, therefore, how difficult it can be for an engager to spot an illegal umbrella model.

What should engagers do now to ensure a compliant supply chain?

We encourage anyone with a responsibility for a temporary labour supply chain to ensure that your due diligence process for checking compliance in the supply chain, is fit for purpose and meets HMRC’s reasonable care requirements.

Whether you engage contractors that provide services via a limited company or are employed by umbrella companies, there are significant risks involved.

Taking a robust, right-first-time approach to supply chain compliance will give peace of mind and confidence to all stakeholders in the process.

HMRC strongly recommends that engagers seek professional advice and assistance in effectively managing the temporary labour supply chain.

At Workr Group our specialist team can offer impartial advice and assistance with all aspects of your supply chain, including our Umbrella solution – Workr Umbrella and our leading compliance service Workr Compliance.




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IR35 changes – blanket statements uncovered

The term ‘blanket statement’ has become synonymous with a specific approach to the impending IR35 changes due on the 6th April 2021, but what constitutes a blanket approach and what are the consequences of getting it wrong?

Perceptions are that some organisations, in the automotive industry, for example, have adopted a blanket approach. However, this is neither proven nor has it been tested in a case of law.

What is clear is that a great deal of ambiguity remains amongst engagers and contractors alike!

IR35 – what does reasonable care mean? Let’s recap

In our previous article, IR35 – deferred, not defunct! Workr Group outlined the changes in responsibilities for engagers along with recommendations on how to achieve reasonable care.

The IR35 changes state that, as the engager, you must take reasonable care in how you go about making an IR35 status determination.

By reasonable care, HMRC means that you must conduct a thorough and detailed assessment of the work to be carried out by the contractor (worker). 

HMRC recommends that you:

  • Formalise and record a consistent process.
  • Seek professional advice and assistance.
  • Involve relevant parties or individuals.
  • Use a determination test tool.
  • Regularly review determinations.
  • Define and communicate a transparent process for challenges.

How does this impact engagers?

Clearly, for companies that engage contractors who provide their services through an intermediary (personal service company or PSC), the IR35 changes will increase in the time and administration required.

As a result, it would appear that some engagers have opted to conduct mass determinations to try to reduce the administrative burden. Making mass determinations for all or large groups of contractors has commonly become known as making a blanket statement.

Previously in the rail sector and more recently in the automotive industry, concerns have been raised about engagers adopting the blanket statement method.

What are the risks of making blanket statements concerning IR35?

Where the engager is deemed not to have taken reasonable care in determining the IR35 status of a contractor, HMRC can transfer any debt for unpaid taxes to the engager

According to HMRC’s Employment Status Manual (esm10014), examples of behaviours which do not constitute reasonable care include, but are not limited to:

  • Determining that every worker who provides their services through an intermediary is caught by the off-payroll working rules without giving any consideration to the specific facts of each individual case.
  • Determining that the off-payroll working rules apply to a large group of workers who have some variations between the work that is being carried out, without giving proper consideration to the different working arrangements for each worker.

If therefore, making blanket statements does not constitute reasonable care, then the implications and risk for engagers are significantly increased.

In the UK automotive sector, for example, some companies engage hundreds, if not thousands of contractors meaning failure to take reasonable care could represent a substantial financial risk.

Additionally, the time saved by making blanket statements is likely to be expended many times over as a result of the high volume of challenges made by contractors in response.

IR35 – does outsourcing the determination process constitute reasonable care?

In the guidelines outlined above, HMRC encourages the involvement of professional advisors in the determination process.

Engagers who utilise such support will be demonstrating a commitment to making fair and reasonable determinations and will likely be looked upon favourably by HMRC and contractors alike.

However, this approach comes with a caveat!

Simply outsourcing the determination process to another party does not relieve the engager of responsibility or liability and may not be deemed as taking reasonable care.

In recent case law; Udlaw Limited v Revenue and Customs (27/01/2020), the tribunal referred to the HMRC Compliance Handbook – CH84540 concerning reasonable care.

The manual states;

A person cannot simply appoint an agent and deny responsibility for their tax affairs. The person still has a duty to take reasonable care, within their ability and competence, to make sure that what they are signing for is correct. The person has to show that they took reasonable care, within their ability and competence, to avoid default by their agent. This will include:

  • Making sure that they give the agent all relevant information with which to work. No agent, for example, can produce correct accounts and returns from grossly deficient records, or give accurate advice if they do not have all the facts.
  • Implementing the professional advice received and not neglecting some vital step.
  • Checking the agent’s work to the extent that the person is able to do so. For example, an ordinary person cannot be expected to challenge specialist professional advice on a complex legal point. But they ought to be able to recognise the complete absence of a major transaction.

IR35 — what should engagers do now?

We encourage anyone with a responsibility for IR35 compliance to ensure that your determination process is fit for purpose and meets HMRC’s reasonable care requirements.

Whilst it may seem time-consuming and burdensome initially, the mitigation of risk and time saved by taking a robust, right-first-time approach will give peace of mind and confidence to all stakeholders in the process.

With the IR35 changes now less than six months away, now is the time to review your determination process!If you have found this useful, then you can find further information on IR35 here.

How To Overcome These Key IR35 Stumbling Blocks

Last week saw IR35 placed well and truly back on the agenda. On Wednesday 18th November, Workr Compliance joined OPRaaS and Engage Technology Partners for an exclusive webinar. Later the same day, I was part of the panel for Venturi’s online event, which looked at ways to reduce costs and increase compliance of a temporary workforce. 

Both events saw a variety of end clients from aviation, retail and manufacturing – and it was music to my ears to see that many have started to prepare. One thing that interested me however, was that engagers – big and small – are frequently coming up against the same obstacles and asking the same questions. So, let’s tackle a few of them head on…  

Responsibilities 

One of the biggest fears that seems to resonate with everyone I speak to is nervousness over not understanding responsibilities. Whereas before your contractors had responsibility to consider and determine their IR35 status for tax purposes, it now falls to you. 

With the threat of fines and non-compliance, it’s easy to get caught up. So break it down into stages. First, evaluate your business needs, and how you plan to handle the compliance project. Then, determine whether or not contractors who work for you are inside or outside of IR35 legislation. You’ll also need to communicate your findings so you can come to an agreement around new contracts before updating your payroll and HR system. 

Expertise 

Once aware of their responsibilities, many businesses choose to lean on an external party for a simple, accurate and transparent solution. But there seems to be a huge question mark over where you go to get that expertise. Do you choose a third-party consultant or allow a recruitment agency to shoulder all of the risk?

Both are viable options, but when engagers (end clients) do partner with a recruitment agency, I find they often don’t know what to do with them or how to use their expertise. I’ve also seen end clients utilising the services of a third-party consultant but still relying on tools like CEST – which we all know is problematic. Do your research, speak to your peers, and trust whoever you choose for external support. They’re experts after all.

Collaboration

Effective IR35 preparation needs teams from HR, payroll, recruitment and many other business functions to work together. It’s a tough balancing act – no-one wants too many cooks in the kitchen. So I wasn’t surprised when attendees at the webinar were asking, “How can I ensure everyone is on board?”

It’s important to map out the responsibilities of each department, communicate these to individuals and delegate tasks. That way, everyone will feel involved. Time will be your saviour though. After all, it can be difficult enough to book one meeting – let alone trying to organise multiple teams on one project. 

So, how can Workr Compliance help?

For starters, Workr Compliance can support you in your status determination by conducting IR35 assessments on each of your contracts. If any are deemed inside IR35, we will advise you on pay options – such as a compliant umbrella solution which will reward contractors with benefits, and help you to attract and retain top talent going forward. 

So, whether you’ve got an IR35 question of your own or want my advice with your preparations, drop me a message today at aw@workrgroup.com for a free 30-minute consultation.