I feel that my employer is misclassifying me as an Independent contractor in a seasonal retail operation.

Asked over 1 year ago - Buffalo, NY

misclassifying me as an Independent Contractor, the parent company transferrs all risk to the individual under contract.

Attorney answers (3)

  1. Ryan M. Finn

    Pro

    Contributor Level 13

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    Answered . I agree that more information would be needed. The New York DOL states as follows on the subject:

    Independent contractors are free from:

    Supervision
    Direction and
    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
    Carries insurance
    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

    PLEASE READ THIS DISCLAIMER * I very much like to offer my advice and guidance to those in need. It is why... more
  2. Marco Caviglia

    Contributor Level 19

    3

    Lawyers agree

    Answered . 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.

    If you found this "helpful" or "best answer," please click it with my appreciation. My response is for... more
  3. Vincent Peter White

    Contributor Level 18

    1

    Lawyer agrees

    Answered . 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.

    This answer does not constitute legal advice and you should contact an attorney to confirm or research further any... more

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