Our Misclassification Attorneys have noticed that this is becoming an increasingly common practice as more and more companies are illegally misclassifying employees as independent contractors to avoid paying payroll taxes and providing individuals with employee benefits. Approximately 15 states, including New York and Connecticut (H.B. 5204), and the federal government are cracking down on unscrupulous employers. Being misclassified has significant disadvantages to individuals because they may not be eligible for unemployment insurance benefits, minimum wage, overtime, worker’s compensation, protection under the anti-discrimination laws or receive employee benefits such as paid vacation and holiday pay. Thankfully, simply because your employer calls you an independent contractor or consultant and/or issues you a 1099 does not make you one even if you signed an independent contractor agreement. Our Misclassification attorneys have represented many employees with the New York State Department of Labor, United States Department of Labor and the IRS (SS-8) to obtain the correct classification determinations and obtain monetary damages on behalf of our clients. You could be entitled to overtime pay, unpaid wages, compensation for employee benefits (e.g., value of lost vacation pay, health insurance coverage, etc.) and other damages (improper prior tax consequences).
In order to correctly evaluate whether an individual should be classified as an independent contractor or an employee, the following is a partial list of factors that courts consider: the level of the direction and control over the worker by the Company; the amount of independent discretion and autonomy available to the worker; the worker’s schedule and location of work; who provides the tools to perform the work (e.g., laptop computer, blackberry, etc.); whether the worker can and does work for other companies simultaneously; whether the parties have an agreement; and whether working relationship was for a set period of time or indefinite.
If you believe that you have been misclassified as an independent contractor or consultant, contact our office at (800) 893-9645 to speak with one of our Employment Law Attorneys for a confidential consultation. Meet our Lead Employment Lawyer.