I have been working for my current employer as an independent contractor for the past 3 years (indefinitely). During this time my role has expanded drastically. I have seen little to no change in the amount of compensation that I am receiving per week. I was recently offered a new contract with similar terms and conditions to the previous one but it slightly fixes the compensation issue but not by much. I don't think that I should accept it because I fail the IRS 20 point test. A few notes
I provide no supplies or equipment
I do set my own schedule
I take very little financial risk
I am indefinitely employed
Its a fixed rate
And my activities are essential to operation
My employer has also offered me back pay for the time I have worked. Should I accept there offer or should fill suit?
A curious post. You are considering an offer to stay with the company as you are wondering how you can sue them. What do you expect in a lawsuit? Employees are entitled to minimum wage (plus overtime, perhaps benefits). Did you make less than that? The company could face tax and perhaps other problems if they did mass misclassifications (as opposed to you or a few others). Is it your desire to be a whistleblower? Clarify what you want out of a lawsuit and what your end game is.
I agree. Your question is a little puzzling. The State of Georgia and the IRS have two different but similar tests for employee vs. independent contractor. It may be that you have misclassified, but I am not sure what you hope to accomplish by forcing the issue. If you have not been receiving at least minimum wage for your first 40 hours each week and 1.5 times that for hours over 40 and you are an employee, you could have a cause of action under the FLSA. If your "employment" is terminated and you file for unemployment compensation, the company may have to prove you were an IC. Beyond that, if you insist on being classified as an employee, your employer will likely just adjust what they are paying so that it does not really benefit you. Bottom line, there may be circumstances under which it makes sense to push that distinction. You need to ask yourself whether this is one of those points, especially where they are often back pay and adjusted compensation going forward. If I have missed your question here, please consult with a family law attorney.
Here's a thought. Accept the terms as presented or negotiate better terms for yourself or walk away and find a new job.
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You might. I certainly recommend talking to an attorney who specializes in representing employees like this. I've included two links that might be helpful to you. The IRS test is one indicator, but it is by no means the only one. Whether you pass or fail that test, so to speak, is only one indication, and is by no means determinative.
Employers often misclassified employees. They do this to save enormous amounts of money on payroll. Your employer, by misclassifying you, saves on unemployment compensation taxes, workers compensation taxes, payroll taxes, health insurance and overtime. When I have sued employers for these reasons, I have normally included five or six different legal theories that all fit the situation. You sound like you've got a great claim. It is definitely worth pursuing and a free consultation.
Thanks for posting your question. Yes, I'm a lawyer, but....respectfully, I'm not your lawyer, unless you've contacted me and talked to me by phone or in person. I practice all over Florida and Georgia, but that's it. And like all lawyers, I cannot give legal advice in any state that I am not admitted to practice in. Unless you're in Florida or Georgia, my comments are food for thought, not legal advice. And if you're in Florida or Georgia, my comments are still just food for thought unless you've hired me or reached out to me for a direct (free) consultation by phone or in person. I hope that makes sense. It's the same rule you'd use in consulting with a doctor. Thanks. Jim,
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