Am I an independent contractor or an employee?

UPDATED: Oct 1, 2022

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Am I an independent contractor or an employee?

I believe I am misclassified as an independent contractor. I am a psychotherapist for a private therapy practice. I perform the main work of the company, therapy. I am told when, where, and how to do my job and what tools and methods to use. I have a noncompete clause in my contract, stating I am unable to work for other private practices or open my own practice within the area, 30 miles. I am paid a set rate per billable hour. I am penalized if I take a sick day. How can I determine if this classification is accurate? Should I file the W9 my “employer� has provided?

Asked on January 31, 2019 under Employment Labor Law, Illinois


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 3 years ago | Contributor

The factors you describe show a level of control over how, when, and where you work that certanly seems to be inconsistent with being classified as an independent contractor. It is most likely the case that you should be classified--and paid as (and get benefits as; and have the tax withholdsing of; etc.)--an employee. If you look at the IRS's website, they have discussions of when someone is an independent contractor or employee, and you appear to be an employee under those criteria. In my experience, someone who works the way you describe would be an employee, not independent contractor.

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