My title at the company is freelance/contractor butt I have a W-2 what are my maternity leave rights?

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My title at the company is freelance/contractor butt I have a W-2 what are my maternity leave rights?

I signed on with the company a couple years
ago as a W-2 freelance/contractor contract
says through TBD. I work 40 hours per week
and meet the minimum hours requirement for
FMLA. I am pregnant, and am wondering what
my rights are for the family medical leave act,
and rights for job security when I return.

I understand that there would be unpaid leave,
but is the company required to hold my position
until I return because I am W-2?

Asked on June 10, 2018 under Employment Labor Law, District of Columbia

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 3 years ago | Contributor

If you are paid by a W-2 and the employer is withholding payroll taxes from your checks, that is strong evidence you are actually an employee. If you work 40 hours per week *and* the company controls or sets your schedule, can determine where you work (e.g. require you to always be onsite, even if there is something you could from home or otherwise offsite), and you have some boss or manager who supervises not just what you do, but can tell you how to do it, then you are almost certainly an employee, not contractor, under the law.
If you and an employee and your company is large enough to be covered under FMLA--it has at least 50 employees who all work within a 75-mile radius--then you have your FMLA maternity leave rights: up to 12 weeks unpaid, they have to hold your job or give you a comparable one (almost identical authority, hours, pay, benefits) when you return. If they didn't, you'd have a legal claim against them (e.g. for lost wages and/or reinstatement) and could bring it to the Dept. of Labor or look into suing.
But the key is, your employer MUST have at least 50 employees; if it does not, FMLA does not apply and you would have no right to maternity leave, unless your employer voluntarily chose to give you such leave. If FMLA does not apply and you are D.C., there is no other guaranty of maternity leave.

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 3 years ago | Contributor

If you are paid by a W-2 and the employer is withholding payroll taxes from your checks, that is strong evidence you are actually an employee. If you work 40 hours per week *and* the company controls or sets your schedule, can determine where you work (e.g. require you to always be onsite, even if there is something you could from home or otherwise offsite), and you have some boss or manager who supervises not just what you do, but can tell you how to do it, then you are almost certainly an employee, not contractor, under the law.
If you and an employee and your company is large enough to be covered under FMLA--it has at least 50 employees who all work within a 75-mile radius--then you have your FMLA maternity leave rights: up to 12 weeks unpaid, they have to hold your job or give you a comparable one (almost identical authority, hours, pay, benefits) when you return. If they didn't, you'd have a legal claim against them (e.g. for lost wages and/or reinstatement) and could bring it to the Dept. of Labor or look into suing.
But the key is, your employer MUST have at least 50 employees; if it does not, FMLA does not apply and you would have no right to maternity leave, unless your employer voluntarily chose to give you such leave. If FMLA does not apply and you are D.C., there is no other guaranty of maternity leave.


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