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Is my employer misclassifying me as an independent contractor?

The vast majority of people make a living as full-time employees working eight hours per day, five days per week from the same location. However, it cannot be ignored that a significant and growing cross-section of workers -- including many young adults -- are now earning their money as independent contractors, working non-standard hours from all manner of locations.

While this development is perhaps not entirely shocking given the proliferation of work in tech-related sectors and the relative freedom afforded independent contractors, those who work in this capacity will nevertheless want to be certain that they are not being misclassified by an employer.

Why exactly does this distinction between an independent contractor and an employee matter?

The distinction between being classified as an independent contractor and an employee matters because if an employer purposely labels you as the former when you are really the latter, it can mean you're forfeiting everything from overtime pay, health insurance and access to other benefits to workers compensation, unemployment benefits and various tax contributions/withholdings.

How can I tell if I'm an independent contractor or an employee?  

While you would think that this would be a relatively simple determination, courts actually consider three primary factors when determining whether a worker is an independent contractor or an employee: the degree of behavioral control exercised, the degree of financial control exercised and the relationship of the parties.

How does behavioral control factor into the determination?  

In general, a court will look to see whether the facts demonstrate that the employer had a right to direct or control the worker. If this right is found to be present, then it's likely the worker is an employee.

For example, if the worker is supplied with painstaking instructions detailing how, where and/or when the work is be performed, then it's likely they will ultimately be found to be an employee. Conversely, if the worker is supplied with instructions detailing only what needs to be done, then it's likely they will ultimately be found to be an independent contractor.

It's worth noting that it's sufficient for an employer to merely posses the right to direct or control the work, not actually exercise it.

We'll continue this discussion in future posts.

If you believe that you've been misclassified as an independent contractor, consider speaking with an experienced legal professional as soon as possible to learn more about your rights and options. 

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