What to do if an employer illegally classifiedsomeone as an”independent contractor”?

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What to do if an employer illegally classifiedsomeone as an”independent contractor”?

Husband was re-hired to do same job he had previously done as a full-time, hourly, benefited employee. This time told he had to be an “independent contractor”. However, he worked on their premises, used their equipment, did not have his own contracting business, they regulated his hours, and paid him hourly. This does not meet legal standard for a contractor. Was it illegal on their part? He worked for 4 years but never signed a contract until they made him, about a month ago. Then suddenly he was terminated for no reason 2 days ago and without 2 weeks notice (which was specified by the contract). What can we do?

Asked on December 30, 2010 under Employment Labor Law, Colorado

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

Businesses cannot simply arbitrarily classify someone as an independent contractor; the classification must be supported by the facts, and can't simply be a way to get out paying FICA or providing benefits. If someone worked onsite, for one employer, using the employer's equipment, and under the employer's direction as to hours of employment, there's a good chance that person was misclassified as an independent contractor when he should have been an employee. If misclassified, it may be possible to sue to recover the monies paid out as a "self-employment" tax; benefits; and/or anny overtime which should have been paid. It would be worthwhile consulting with an employment attorney to see how strong your husband's case is and what he may be able so sue for.


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