What to do if I’ma subcontractor being treated as an employee?

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What to do if I’ma subcontractor being treated as an employee?

I am looking for answers on what to do.

Asked on February 21, 2012 under Employment Labor Law, New Jersey

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

If you are suffering any loss due to the misclassification, you could potentially bring a lawsuit for recovery or compensation. Before you do, however, you should think about whether it is in your interest to do that. Normally, when there is a misclassification problem, it's the other way around--an employee treated like a contractor. That generally causes a real loss, since the employee loses out on the employer contribution to FICA, potentially on overtime, vacation days, health insurance, 401(k) match, etc.

However, if a contractor is treated like an employee, it would seem that this has the potential to be economically beneficial for you; certain things, like the employer portion of FICA, may be paid on your behalf. Therefore, while you should be classified correctly, before going to the expense and trouble of legal action, consider whether doing so is in your interest. If you do want to take action, consult with an employment law attorney--many provide a free initial consultation to evaluate a case.


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