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

Buffalo, NY |

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

Attorney Answers 3

Posted

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 I became a lawyer. However, please note that I have not been engaged to be your lawyer so my advice is general in nature. Certainly, if you would like, please feel free to email or call me to further discuss the particulars of your situation (as many times it is not a good idea to provide a lot of information about your case on a public forum). * Hacker Murphy, LLP * 518.213.0115 * Rfinn@hackermurphy.com * http://www.hackermurphy.com/Attorneys/Ryan-M-Finn.shtml * Hacker Murphy serves clients throughout New York State (including New York City and Long Island). *

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Posted

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 statements made in this answer. Any statements of fact or law I have made in this answer pertain solely to New York State and should not be relied upon in any way in any other jurisdiction. Additionally, we also encourage you to reach out to us via Twitter (https://twitter.com/#!/WhiteRoseMarks) or Facebook (http://www.facebook.com/WhiteRoseMarks) if you have follow up questions as we do not monitor questions after providing an initial answer.

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Posted

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 educational purposes and does not constitute legal advice nor creates an attorney client relationship which requires all the details and a personal conference.

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