Can businesses that are performing the same function be treated differently or is that considered discrimination?

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Can businesses that are performing the same function be treated differently or is that considered discrimination?

I am a freelancer in the graphics field with an S-Corp. Recently, a client told me I have to go on their payroll and they are refusing to pay my business and allow me to be on the payroll of my own company. However, they allow people from placement agencies to be on the payroll of that agency.

Asked on January 23, 2015 under Employment Labor Law, New York

Answers:

M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 6 years ago | Contributor

Generally an employer can set the terms and conditions of employment as it sees fit (absent an emploment contract, union agreement, specific compny policy, etc to the contrary). This includes whether or not to treat an employyee or business that is employed by them differently. The fact is that not all employees need be treated the same; not all forms of "discrimination" are against the law. For a case of discriminatory treatment to be illegal the treatment must affect a "protected class". Absent that, then such treatment is allowable. Legally protected classes would be, for example, those based on race, gender or religion. Therefore you could not treat a woman differently than a man, an Asian differently than an Hispanic or a Muslim differently than a Protestant. Here, there is no such class, consequently no legal protection is afforded. 


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