What should you do if your employer won’t sign a standard independent contractor contract

What should you do if your employer won’t sign a standard independent contractor contract, demands that you perform out-of-scope work per your ‘offer letter’ that was ‘to stand in lieu of a formal contract’, demands that you come in to their place of office in person when meetings consist of being yelled at, called stupid, or lectured, and all upon threat of termination?

What I’ve tried thus far

Emailed them twice that I believe due to the scope and control over my work and ‘open-ended’ contract that I’ve been misclassified as an idependent contractor – the first email to which they never responded. Sent them a standard independent contractor contract that I’ve received from many other clients edited with their business info which they won’t sign. Repeatedly emailed that certain projects are out-of-scope with the ‘offer letter’ they have sent me to ‘stand-in in lieu of a formal contract.’ Repeatedly emailed that out-of-scope projects can be negotiated separately. Emailed them a copy of the ‘offer letter’ they have sent me to ‘stand-in in lieu of a formal contract’ to show my current scope of work. Asked that assignments be sent in writing and that email is acceptable format for that writing, as verbally given assignments and duties are being forgotten. Asked that approval of projects be sent in writing, and that email is acceptable format for that writing, as verbally given approvals are being forgotten. Emailed more than once that in-person meetings can be held when project time permits and when assignments are sent in writing. I’ve also mentioned that the control and demands they are making over how I do my work is an indication that I am and have been an employee and that treating me as an independent contractor without a contract is tax fraud.

I’ve also filled out the IRS’s FSS8 Misclassification paperwork and am waiting on a determination from the IRS.

Asked on February 27, 2016 under Employment Labor Law, Massachusetts

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 4 years ago | Contributor

Yes, the degree of control they are exerting over you may well mean that you are an employee, not an independent contractor, and if an employee, you should be paid on a W-2 basis (i.e. have the employer pay the employer share of withholding for you; possibly get overtime when you work more than 40 hours per week; make unemployment contributions for you; etc.) and get any benefits given by this employer to its employees. If an employee, you also have substantial--not perfect, but reasonable--protection from being retaliated against for raising your rights as an employee. In addition to contacting the IRS, speak to your state department of labor--they deal with misclassification and failure to pay appropriate amounts to employees in a much more direct way than the IRS (which, after all, only deals with taxes; the dept. of labor enforces the wage and hour laws, on the other hand) and look to file a complaint.
However, if you actually an independent contractor, there really is little you can do: they don't have to sign a specific form or contract, or any written contract at all; if there is no formal written contract, but just oral agreements, even if embodied in an offer letter, they may change what they ask you to do or how much they offer for compensation at any time at will on a forward-looking basis (i.e. until they make the change, you do and are paid as previously agreed); and can generally be completely not worth working for and abuse you. Independent contractors have very little protection outside of the terms of any written contracts, so contacting the dept. of labor to help you with any misclassification is imperative.


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