Are You Misclassified As An Independent Contractor?

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An AOL Jobs reader asks:

Hi Donna,

I recently started working as an "independent contractor" for a company. Going into it I was rather uneducated and confused in what that meant. Now that I have done a little more research, I don't think it's something I want to do, but I feel like I am stuck in it. The agency that hired me on as a part-time independent contractor now has a schedule in which I work over 40 hours every week. My boss sets the schedule only adjusting it after I repeatedly ask to not work some days. If I call and tell him I can't work a certain day he only allows me to take off if he can find someone else to cover the shift. I work at a hospital and am nervous not having any workers comp (there is a constant threat of being harmed). I don't know if I've been misclassified and what my options are. Thank you for your time.

If you're really an independent contractor, you don't get paid overtime and you aren't covered by worker's compensation. You have to pay your employer's share of employment taxes. Plus, discrimination and other laws protecting employees don't apply to you. However, most people labeled as contractors are really employees. How can you tell which you are? What can you do if you're misclassified? Here's what you need to know about being an independent contractor:
  • Contractors: You're probably a contractor if you have been given a job to do and the company you're performing services for doesn't control how or when you do it. You may have a deadline, but no specific work hours. You can come and go as you please. You supply your own equipment and supplies. You can hire assistants if you want. You can work for other companies if you want. You don't need preapproval for vacation time because you're the boss. Contractors can have their contract terminated for poor performance, but can't be disciplined.
  • Employees: You're an employee if you work for someone who controls what you do and how you do it. If they watch your hours, make you come in the office, make you ask permission to take time off, or supervise your assignments, you are likely an employee. Employers tell you what equipment to use, provide a desk, computer or tools and are tell you who will assist you. If you get evaluations, are written up for discipline or performance issues, or can be suspended or fired, you're likely an employee. If you went through a detailed training on how you are to do the job and specific procedures to be used, you're an employee. If you can't work for other companies at the same time, you're an employee. If you have benefits like insurance, pension, sick time and vacation time, you're probably an employee.
  • What to do: There are several things you can do if you think you're misclassified. If you have a good relationship with the company, you can talk to someone in charge or HR to discuss your misclassification. Feel free to hand them a copy of this article. If you can't do that or if they won't resolve it, you can fill out the handy-dandy IRS form SS-8 and have the government make the determination whether or not you're misclassified. They'll ask you some questions about your job and they'll go after the employer for its share of employment taxes if the employer got it wrong (if they did, you've been paying double what you should). You can also contact the Department of Labor if you think you are owed overtime or other wages due to being misclassified. Better yet, contact an employee-side employment lawyer in your state to help you figure out whether or not you are misclassified.

If you need legal advice, it's best to talk to an employment lawyer in your state, but if you have general legal issues you want me to discuss publicly here, whether about discrimination, working conditions, employment contracts, medical leave, or other employment law issues, you can ask me at AOL Jobs.

Please note: Anything you write to me may be featured in one of my columns. I won't be able to respond individually to questions.
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