In recent years, there has been a significant increase in the number of employees who have been misclassified as independent contractors. A misclassified worker can lose rights to overtime pay and participation in employee benefits, including service in the retirement system. The effects of misclassification can be significant to employers and workers. This blog post discusses the one major effect suffered by misclassified New York State workers – denial of the right to participate in the state’s retirement plan. This loss of retirement benefits can be substantial for long-term public workers. Our Award Winning New York Employment Law Attorney has advised workers and companies on misclassification issues and can help you. Contact our office to learn your options and rights.
The Office of the New York State Comptroller’s office created this form to assist in making a determination of the worker’s proper status and eligibility for participation in the retirement system. Below is the list of 21 questions asked on the form. A “Yes” answer to a question is indicative of an employee-employer relationship; alternatively, a “No” answer is indicative of an independent contractor relationship. It is very unlikely that a worker will answer “yes” to all of the questions or “no” to all of the questions. Like in all misclassification cases, no one factor is dispositive. A balancing test of the factors is used with a weight put on the extent of the state’s control over an individual’s work. Workers should seek experienced legal counsel before submitting responses to this form.
1. Does or did the employer have the right to control, supervise or direct the individual performing services, not only as to result but as to how assigned tasks are to be performed?
2. Does or did the individual report to a certain person or department at the beginning of or during each work day?
3. Are or were the individual’s decisions subject to review by the employer?
4. Does or did the employer set the hours to be worked?
5. Does or did the individual work at established and fixed hours?
6. Does or did the employer maintain time records for the individual by means of either a timekeeping system or submission of a sample record of activities?
7. Has or did the employer establish a formal job description for the position?
8. Has or did the employer’s governing board formally create the position with the approval of the local civil service commission where necessary? If yes, please provide documentation.
9. Does or did the employer prepare performance evaluations for the individual? If yes, please provide a representative evaluation.
10. Does or did the employer have the right to require the individual to be trained related to their employment (e.g. sexual harassment prevention)?
11. Does or did the employer provide the individual with permanent workspace and facilities (e.g., office furniture, utilities)?
12. Does or did the employer provide the individual with equipment and support services (e.g., computer, telephone, supplies, clerical assistance, etc.)?
13. Is or was the individual covered by a contract negotiated between a union and the employer?
14. Does or did the individual have a contract with the employer? If yes, please provide contract.
15. Does or did the employer pay the individual for the performance of services through the submission of a voucher?
16. Are or were tax withholding and employee benefit deductions made from the individual’s paychecks?
17. Does or did the individual receive any fringe benefits (e.g., health insurance, sick or vacation time)?
18. Is or was the individual authorized to hire others, at the expense of the individual or a third party, to assist the individual in performing work for the employer? If yes, please provide explanation.
19. Is or was the individual currently performing substantially the same services for other public employers?
20. Is or was the individual also employed or associated with another entity that provides services to the employer by contract, retainer or other agreement?
21. Does or did the individual provide professional services to the public?
A misclassification case can have several moving pieces and experienced counsel can make all the difference. Workers should maintain all records and information that evidences their proper working relationship. For example, if a worker has email messages dictating a fixed work schedule with specific duties to be performed, this may be evidence of direction and control and support an employee finding. Contact our office to learn your options.
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