misclassifying me as an Independent Contractor, the parent company transferrs all risk to the individual under contract.
Employment / Labor Attorney
I agree that more information would be needed. The New York DOL states as follows on the subject:
Independent contractors are free from:
Control in the performance of their duties.
They are in business for themselves, offering their services to the general public.
Signs of independent contractor status include a person who:
Has an established business
Advertises in the electronic and/or print media
Buys an ad in the Yellow Pages
Uses business cards, stationery and billheads
Keeps a place of business and invests in facilities, equipment and supplies
Pays their own expenses
Assumes risk for profit or loss
Sets their own schedule
Sets or negotiates their own pay rate
Offers services to other businesses (competitive or non-competitive)
Is free to refuse work offers
May choose to hire help
An employer-employee relationship may exist regardless of how the hiring party describes it. For example, if you give a worker a 1099 Form rather than a W-2 Form, they may still be an employee. Persons who work for you may qualify as employees under the law, even if, for example:
You have the person sign a statement claiming to be an independent contractor
They waive any rights as an employee
You require them to obtain a dba in order to work for you
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This is going to require a very fact sensitive analysis, most likely more than is feasible to handle on an online question forum. I suggest you contact an experienced employment attorney in your area.
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1 lawyer agrees
Criminal Defense Attorney
This can't be answered ont he basis of what is stated. However, often companies attempt to misclassify for a number of reasons, such as yours, or avoiding payroll taxes. The IRS provides character tests to positions to determine from its point of view if an employee is that or an independent contractor, e.g. who directs his daily routine, etc. That might be a good starting point, but you will necessarily need an attorney at some point, so perhaps the sooner the better, with a labor law lawyer.
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