is it possible to misclassify an employee as a contractor?

Employee claims I misclassified them as a contractor by asking that person to fill

a W9. How should I proceed?

Asked on June 6, 2018 under Employment Labor Law, New York

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 2 years ago | Contributor

Whether a worker is a contractor (form 1099) or employee (W2) depends on the nature of their relationship to the employer. The U.S. Dept. of Labor has a good breakdown of when a worker is an employee vs. when they are an independent contractor, but in brief and to oversimplify: if the employer controls when (e.g. hours), location, and how the worker does his/her job, the worker is an employee; if the employee simply pays the worker to do a task but the worker decides how to do it, when, and where, the worker is an independent contractor. Independent contractors have, as the term implies, a large degree of independence which employees lack. Determine based on the criteria if the worker is an independent contractor or employee, then have them fill out the correct form for tax purposes; the form is not the controlling factor, but rather the nature of the work relationship is.

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 2 years ago | Contributor

Whether a worker is a contractor (form 1099) or employee (W2) depends on the nature of their relationship to the employer. The U.S. Dept. of Labor has a good breakdown of when a worker is an employee vs. when they are an independent contractor, but in brief and to oversimplify: if the employer controls when (e.g. hours), location, and how the worker does his/her job, the worker is an employee; if the employee simply pays the worker to do a task but the worker decides how to do it, when, and where, the worker is an independent contractor. Independent contractors have, as the term implies, a large degree of independence which employees lack. Determine based on the criteria if the worker is an independent contractor or employee, then have them fill out the correct form for tax purposes; the form is not the controlling factor, but rather the nature of the work relationship is.


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