Independent Contractor - some technicalities...

Author: Yana A. St. Clair, Esq.

Independent Contractor: (misclassification issues)

In our previous articles on this topic, we discussed the issue of your benefits and losses of being an independent contractor, as opposed to an actual employee.  In our last issue, we touched upon the best and most common ways to determine whether you in fact qualify as one or the other.  Now we turn our attention to what your best course of action is, in the event that you have been misclassified by your employer. 
Being misclassified can be incredibly costly to an employee.  Needless to say, some of the major issues that often arise are the fact that you must cover your own Social Security and medical coverage.  But in addition, in the event that you are injured on the job, your employer will not cover your costs if you are misclassified as an independent contractor. 

Further, generally you have no right to minimum wage, overtime pay, time off in the event of an illness, or even on the job lunch and break times. 
Finally, being an independent contractor does not afford you unemployment benefits in the event that you are terminated from your position.

So, the question begs, if you have potentially determined that your employer is wrongfully claiming you as an independent contractor, when you are in fact an employee, what do you do to remedy the situation, and who do you turn to?

It is of course important to first check with your local jurisdiction, to determine what the particulars of your country, state or local municipality are, before you proceed with any further action. 
Most jurisdictions recommend that you first consult with your employer and discuss whatever issues you might be facing, or might be of concern, before taking it up with a higher authority. 
In the event that your supervisor is unresponsive, and unwilling to assist you, it is recommended that you discuss your situation with Human Recourses, or an equivalent body in your company.
That being said, at times neither of these options may lead to any fruition, so now what? 

Well, you have exhausted these initial attempts to remedy an employment concern, the next recommended step is that you contact your local agency which handles such matter, for example, the Internal Revenue Service, or a similar agency in your country of employment which deals with such matters.
If you happen to be employed in the United States, the IRS suggests that you file Form SS-8, which would allow the IRS to determine your worker status for purposes of federal employment taxes as well as income tax withholding.  The IRS authorities will then determine what your actual employment status is. 
While this determination is not per se binding on the employer, it is considered official by the IRS, and any attempt by your employer to ignore the decision, will get them in cold water. 

Finally, it is always a good option to contact an attorney who specializes in employment law, and can best advise you on your course of action. 
Such specialists, and make sure they are well qualified, can help you understand the full detail of the law, assist you in determining whether you not you have in fact been misclassified, and if needed, file any, and all paperwork in the event that you feel you have been wronged by your employer, and choose to file a lawsuit for compensation.

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