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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!

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Attorney answers 4

Posted

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.

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Michael J. Bace

Michael J. Bace

Posted

I will also note, if you are owed overtime, the value of benefits, or other wages as a result, the law allows for mandatory triple damages, plus an award of reasonable attorney's fees. Thus, most attorneys, like our office, will explore the potential of handling your case on a contingency fee basis, which means you will pay nothing until/unless there is a successful settlement.

Asker

Posted

Thank you for your feedback. Good to know. Out of curiosity what is the point behind giving me a W2 form if I am not full-time? I appreciate that they take some taxes out come tax time.. but does that help them in the end or just make them look like they have a full-time employee to the IRS? My biggest concern is losing the position.. which right now is my only paycheck. However, I know I have been shorted money (holidays, vacations, summer fridays) and benefits. I am in a tough spot.

Michael J. Bace

Michael J. Bace

Posted

If you're getting a W2, then you're likely correctly classified as an employee. If that's the case, Attorney Miller is correct that the contract between you and your employer will largely govern. If you work greater than 40 hours per week, however, I would want to know whether or not you were being paid the overtime premium.

Asker

Posted

No I don't get paid overtime.. but knowing my situation I try to not to work over the hours I should be working just for my own sanity and knowing this has to be wrong. I am sure at some point I have worked over 40 hours over my time here.. They do give their employees paid vacation, sick time, and summer fridays. These drastically impact my paycheck since I am not paid for them.

Posted

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.

Posted

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 rob@fortgangemploymentlaw.com

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Posted

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"