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Am I being misclassified as a contractor?

Boston, MA |

I am a graphic designer and have been working as a "Contractor" (not through an agency but on my own) at a company since May of 2012. I originally signed onto a contract that ended in August 2012. I asked a few times about a new contract and the answer was that they were trying to find me a full-time placement there. Well over a year later they haven't... My work situation is on-site 5 days a week and paid hourly no overtime. I have a cube, company email, and extension, I am required to attend meetings regularly at the office, I use a computer provided to me by the company, my work is reviewed regularly by my manager and his teammates, I am required to follow company policies while on site, I punch in and out , and receive at W2 form (?!) but get no benefits... a list a few issues!

Attorney Answers 4

  1. If the work you perform is work that is within the scope of the company's "regular course of business," then you are likely not an independent contractor - regardless of what the company says, and regardless of what your contract says. The crux of the issue is, how have you been damaged by that misclassification. For example, if you work more than 40 hours in any given week, you must be paid 1.5times your normal rate for every hour in excess of 40 hours. If the correctly classified employees receive benefits, you may be entitled to the value of those benefits as well. You should contact an attorney without delay and speak via phone. Most, like my office, will give you an initial consultation for free to evaluate your options.

  2. For purposes of most laws (such as tax laws, Massachusetts unemployment compensation and workers' comp) you are an employee. Whether you are entitled to health insurance benefits, depends on the contract between the employer and the insurance carrier, but my bet is that they should be giving you those benefits on the same basis as other employees. With regard to things like paid vacations, that is a matter of company policy, and whether you should be getting those benefits is determined by the wording of those policies.

  3. I agree with Attorneys Miller and Bace and would add that employers and individuals sometimes play the game of turning what is otherwise an employer-employee relationship into the fiction of "independent contractor". Depending on your level of education and the work you are performing, you may have been classified incorrectly as "exempt" from the requirement to pay time and one-half after 40 hours. For all of these reasons you would do well to reach out to MA employment lawyers for a no cost, no obligation consultation. Good luck and best regards, Rob Fortgang - Employment Law Attorneys serving Massachusetts and Connecticut / 800-932-6457 / 413-658-8500 / 774-329-3412

    ROBERT FORTGANG ASSOCIATES, LLC - DISCLAIMER These materials have been prepared by Robert Fortgang Associates, LLC and are to be used for informational purposes only. These materials are not intended, and should not be construed as legal advice. This information is not intended to create, and receipt of it does not constitute, an attorney–client relationship. Additionally, any submission or receipt of such information via any means of transmission does not create an attorney-client relationship. Internet subscribers and on-line readers should not act upon any of the information contained on this web site without seeking professional counsel. Please do not send us information until you speak with one of our lawyers and receive authorization to send that information to us.

  4. common question. Under various state laws and the Fair Labor Standards Act, your employer may be trying to dodge paying you overtime and giving you benefits by calling you an independent contractor when in fact under the law you are an employee. Common tactic of employers, but if you are being paid fairly and willingly signed a w-9, your case may not be strong. Consult (i) Google on this issue and if indicated (ii) local boston counsel under "wage and hour lawyers"

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