If my former employer tried to misrepresent me as an independent contractor instead of as an employee to unemployment, what do I need to do?

After losing my job a few weeks ago, I filed for unemployment benefits and a few days later I received a phone call from the VA Employment Commission. The person asked me a few questions and then later told me that I was ineligible to file for unemployment from my most recent employer because the company had not been reporting my wages. As advised by the VA Employment Commission I went to the local office and they investigated. My former boss (and owner of the company) stated that I was an independent contractor and not an employee, although she controlled my work.

Asked on September 29, 2010 under Employment Labor Law, Virginia

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

You should seek out an employment attorney and discuss the matter with him or her. If you can prove that you were an employee, you may be able to sue your former employer for  damages, such as for overtime that you should have been paid (but were not) or unemployment benefits. The issue of whether someone is an independent contractor or an employee depends on the facts of his or her work and the relationship with the company--it has nothing (or very, very little, anyway) to do with what an employer calls a worker. An employment attorney can listen to the facts of your situation and help you determine if you have a case, how strong it is, and what it might be worth. If you're curious, go to the U.S. Dept. of Labor website--you should be able to find information about the difference between employees and independent contractors.


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