3 Questions to Help You Determine if You Are Being Misclassified

Published September 14, 2018
By Anonymous

Is your relationship with your job appropriate? What if the conditions of that contract gig you have make you a bona fide employee under law, and therefore entitled to a host of protections and benefits you don’t currently have right now—such as minimum wage, overtime pay, sick pay, workers’ compensation, workplace safety, and anti-discrimination protections?

If a company hires you as an “independent contractor,” but treats you as a bona fide employee, you’re not getting the benefits of either classification: independence or legal protections.

Workers in the so-called “gig economy,” driving people around, delivering food, writing code, among other things, are in an especially ambiguous space. Their status might not be especially clear, given the tasks and the nature of the work. However, they’re not the only ones. There are people in scores of industries, such as construction, who might be getting denied income and protections to which they’re entitled, whether the employer is intentionally doing so or not.

The problem occurs when a company hires an “independent contractor,” but treats the worker as a bona fide employee. In that scenario, you’re not really getting the benefits of either classification: independence or legal protections.

Here are three key questions to ask to help you determine if you’re really an independent contractor or an employee. (The answers to these aren’t absolute, but they can help point you in the right direction.)

1. How Much Control Do You Have Over How You Complete Your Work?

One of the major tell-tale signs that you are misclassified as an independent contractor is the degree of control over how you complete your work.

Under the federal Fair Labor Standards Act, you could be considered an employee if an employer tells you how to and how not to complete a job and where and when you can complete it. The micromanagement might annoy you on a basic level, but it could also fundamentally be a relationship-changing interaction under law.

Furthermore, if you’re hired for a job as an independent contractor, then you are generally allowed to hire subcontractors to help you complete the job and you’re not typically bound by things like a requirement to work in an office on a 9-5 schedule. You also generally are allowed to have multiple clients.

Essentially, if you’re working “with” a company and they have an outsized control over how you get a job done, then perhaps what you’re really doing is working “for” the company. If you’re really an employee, then you have rights.

2. Are You Required to Attend Meetings or Undergo Particular Types of Training?

If you’re required to regularly attend meetings, there’s a chance you’re misclassified.

One of the other signs that you should be classified as an employee instead of an independent contractor is if your “client” requires you to attend training or attend regular meetings.

The concept of “training” gives the impression that the company must teach an independent contractor how to do a job or project. As mentioned above, when a company starts telling a contractor how to do a job, then they’re changing the nature of the relationship.

There’s nothing untoward about a contractor meeting with a client to go over the details of a job, but if you’re required to regularly attend meetings with a company’s team there’s a chance you’re misclassified.

3. Do You Supply Your Own Equipment and/or Tools to Complete a Job?

Independent contractors supply their own tools, whether it’s computers and paper or machinery or vehicles. This is a pretty standard aspect of that classification.

If you are working for a company that requires you to use their equipment to finish a job, then perhaps you’re not such an independent contractor afterall. Generally, only employers provide all the supplies an employee needs to get the job done.

An equipment-use requirement can sometimes come hand-in-hand with the aforementioned over-managing, as part of an overall maximal exertion of control that affects your independent status.

The ABCs of ICs

California recently joined New Jersey and Massachusetts in its use of a so-called ABC Test to determine a worker’s classification. The ABC Test is a standard that an employer must follow to prove that you’re truly an independent contractor and not an employee. The California development comes out of a case in which the state court ruled that a company called Dynamex had misclassified its delivery drivers as independent contractors.

It’s a three-pronged test that is related to the questions presented in this post, but also looks at a worker’s relationship with their industry as a whole. If all three are true, then the worker is an independent contractor:

  1. The worker must be free from the control and direction of the hiring party when it comes to doing the work.
  2. The work is outside of the typical course of the hiring party’s business.
  3. The worker is independently established in the trade, occupation, or business of the same nature as the type of work done for the hiring company.

Key Takeaway: Take a Good Look at Your Situation

Just because you are invoicing a client, rather than getting a paycheck, that doesn’t mean that you’re not an employee. You could be stuck in an improper situation in which you are expected to cover all of your tax obligations AND be subject to the control of an employment relationship.

You could be expected to incur the costs and investments of doing the work, as an independent contractor does, but the rest of your relationship looks like you’re an employee without any of the strong protections to which you should be entitled.

If you believe that you’ve been misclassified in your job and that you’re losing out on the rights and protections you’re entitled to, especially pay, contact an employment rights attorney at ClassAction.com today for a free, no-risk case evaluation. You may be entitled to compensation for things like wage theft.