Can an employer make you an independent contractor for a probationary period?

UPDATED: Oct 1, 2022

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Can an employer make you an independent contractor for a probationary period?

I was brought onto a real estate team in Wilmington, North Carolina as the marketing manager and executive assistant. I was told I would be an independent contractor for the first 90 days. However, my employer determined where I worked, when I worked, provided direct supervision, etc., yet I had to use my own computer and phone… 3/4 of the way through my 90 days, they completely changed my contract – only verbally. Now that my 90 days is up, I went in for my ‘review’ and they want to extend my

Asked on March 2, 2019 under Employment Labor Law, North Carolina


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 3 years ago | Contributor

You apparently already know the answer, which is "no." Calling a period of employment a "probationary period" is irrelevant: the law does not recognize a "probationary period"--it's only an internal designation, with no effect on legal rights. 
Whether you are an independent contractor or an employee depends on the nature of your job and how you are supervised. If you are directly supervised and your employer sets your hours and location of work, you are an employee, no matter what they want to call you, and must be paid like an employee in all regards: e.g. may be eligible for overtime; the employer has to pay the employer share of Social Security and Medicare withholding for you; the employer must contribute to unemployment; if employees get health insurance, vacation days, sick days, etc., you would be eligible for them; etc.
If not paid as an employee should be when you are in fact an employee, you could contact the department of labor to file a complaint.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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