is it possible to misclassify an employee as a contractor?

Get Legal Help Today

Compare Quotes From Top Companies and Save

secured lock Secured with SHA-256 Encryption

is it possible to misclassify an employee as a contractor?

Employee claims I misclassified them as a contractor by asking that person to fill

a W9. How should I proceed?

Asked on June 6, 2018 under Employment Labor Law, New York

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 5 years ago | Contributor

Whether a worker is a contractor (form 1099) or employee (W2) depends on the nature of their relationship to the employer. The U.S. Dept. of Labor has a good breakdown of when a worker is an employee vs. when they are an independent contractor, but in brief and to oversimplify: if the employer controls when (e.g. hours), location, and how the worker does his/her job, the worker is an employee; if the employee simply pays the worker to do a task but the worker decides how to do it, when, and where, the worker is an independent contractor. Independent contractors have, as the term implies, a large degree of independence which employees lack. Determine based on the criteria if the worker is an independent contractor or employee, then have them fill out the correct form for tax purposes; the form is not the controlling factor, but rather the nature of the work relationship is.

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 5 years ago | Contributor

Whether a worker is a contractor (form 1099) or employee (W2) depends on the nature of their relationship to the employer. The U.S. Dept. of Labor has a good breakdown of when a worker is an employee vs. when they are an independent contractor, but in brief and to oversimplify: if the employer controls when (e.g. hours), location, and how the worker does his/her job, the worker is an employee; if the employee simply pays the worker to do a task but the worker decides how to do it, when, and where, the worker is an independent contractor. Independent contractors have, as the term implies, a large degree of independence which employees lack. Determine based on the criteria if the worker is an independent contractor or employee, then have them fill out the correct form for tax purposes; the form is not the controlling factor, but rather the nature of the work relationship is.


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 AttorneyPages.com 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.

Get Legal Help Today

Find the right lawyer for your legal issue.

secured lock Secured with SHA-256 Encryption