What to Do if You Have Been Misclassified as an Independent Contractor

In New Jersey, employees can file a workers’ compensation claim and recover benefits after suffering a work-related injury or developing an occupational disease. The benefits awarded in an NJ workers’ compensation claim can be substantial, and employers know this. Often, employers are trying to find ways of avoiding paying workers’ compensation benefits to employees.

One of the things employers do to get out of paying workers’ compensation benefits to employees is miscategorizing employees as independent contractors (ICs). Misclassifying an employee is unlawful, regardless of whether intentional or not. But the fact that this act is illegal does not prevent employers from engaging in it. Because workers’ compensation in New Jersey does not cover ICs, employers can avoid paying workers’ compensation benefits to injured employees by miscategorizing employees as independent contractors.

Unfortunately, if you are misclassified as an independent contractor and you end up suffering a work injury or developing a work-related illness, the burden of paying your substantial medical expenses may fall on you. You may also be unable to recover compensation for the loss of income. The good news, however, is that there are steps you can take if your employer has misclassified you as an IC.

What to Do if Your Employer Has Misclassified You as an Independent Contractor

The following are steps you can take if you have been miscategorizing as an IC that could prove effective;

  • Speak to an Attorney 

If your employer has classified you as an independent contractor instead of an employee, speaking to an employment lawyer is the best course of action. A qualified employment lawyer can provide counsel on how best to handle the situation.

  • Speak to Your Employer

Speaking to your employer is another step you can take if you have been miscategorized as an IC. Your employer could have misclassified you unintentionally. Explain to your employer that you believe you have been mistakenly classified as an independent contractor.

If you choose to first speak to your employer and they insist that you are an independent contractor, yet you know you are not, ensure you contact an attorney.

Is There a Test for Deciding if a Person is an Employee or an Independent Contractor?

In New Jersey, the ABC test is used to decide if a person is an employee or an independent contractor. According to the ABC test, you are an employee if all the following are true;

  • You are subject to the control or direction of the employer when it comes to how work should be performed,
  • You only do work that is within the ordinary scope of the employer’s business, and
  • You do not engage in an independently established profession, occupation, trade, or business.

Remedies Available to Misclassified Employees

A misclassified employee is entitled to reclassification. After that, they are entitled to workers’ compensation benefits if injured on the job. Apart from that, they are entitled to the following;

  • Minimum wage, including back pay for minimum wage
  • Overtime, including back pay for unpaid overtime
  • Job-related family leaves
  • Unemployment benefits
  • Up to 5% of their gross earnings over the last year as a penalty for the unlawful misclassification

Contact the Trabosh Law Firm

If you have been classified as an independent contractor yet you are an employee, contact the skilled New Jersey employment lawyer at The Trabosh Law Firm for legal guidance.

Posted in