I'm Misclassified As A Contractor And My Workplace Is Unsafe

Workman install roof on rural building

An AOL Jobs reader asks:

Hi I am working for a property preservation company that made me file under a W-9 as if I was my own contractor to avoid giving us health benefits and overtime pay. There are days I can work over 16 hours a day 6 days a week and we use his vans, his tools, he tells us what to do, where to be, at what time to be there, and how to do the job his way but yet I'm still an independent contractor. He also makes us do unsafe things like go on roofs with someone to foot my ladder or without a harness and I'm talking about 3 family homes. I shake just thinking about going up on the ladder. We also clean mold without the proper mask, breathing these fumes in doing plumbing work without licenses and much more. My breathing has become very bad. I'm short of breath all the time and I'm also having a weird cough at times. What can I do?

First of all, it definitely sounds like you are misclassified as a contractor. For more on how to determine whether or not you are an independent contractor, check out my article 11 Things To Know Before You Sign An Independent Contractor Agreement. If you think you're misclassified then there are several steps you can take:1. Fill out the IRS's form SS-8. That way it's the government making the determination that you're misclassified, not you. The form asks you some questions about your job that will help IRS determine whether you should have been an employee, and then they'll go after the employer for its share of employment taxes (you've been paying double what you should).

2. Contact the Department of Labor. They can help determine if you are owed overtime or other wages due to being misclassified.

3. Contact an employee-side employment lawyer. A lawyer in your state can help you figure out whether or not you are misclassified.

Now that you've figured out you're really an employee, you have rights if you're in an unsafe workplace. Here are some steps you can take to protect yourself and your coworkers:

1. Ask for an OSHA inspection: OSHA is the Occupational Safety and Healthcare Administration, and they deal with making sure your workplace is safe. You have the right to contact OSHA and ask them to inspect your workplace. If you make an OSHA complaint, you're legally protected against retaliation.

2. Report them to your state's worker's compensation agency: I'm willing to bet they have no worker's compensation insurance, and pretty much every state requires construction employers to have it. Many other employers must have worker's compensation coverage. If they don't, then they could be subject to fines or other punishment by your state.

3. Make a worker's compensation claim: If you are injured, the company has to file a report of your injury and send it to the worker's compensation carrier. You may need a worker's compensation attorney to help you through this process as it can be complicated.

4. Sue them: If they don't have worker's compensation insurance and you are injured, they may be subject to a personal injury lawsuit. For that, you need a personal injury attorney in your state.

5. Get the heck out of there: For heaven's sake, don't work in a dangerous place. Look for another job and get out of there. In the meantime, your coworkers and you should try to spot each other to try to minimize injuries. If it's truly dangerous and you know it, refuse. It's better to be fired than disabled and unable to work.

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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