Misclassified Employees Have Protections Under the Law.

Many businesses misclassify employees as independent contractors as a way of depriving workers of employee benefits. Employers save a lot of money by misclassifying employees as independent contractors as it permits the employer to deny the employee benefits such as: unemployment, Family Leave Insurance, protected leave under the Family Medical Leave Act, Paid Sick Time, minimum wage, overtime, medical coverage, workers’ compensation insurance, and other employee benefits. In addition, being classified as an independent contractor can be quite costly as independent contractors have to pay all their Social Security and Medicare taxes out of their own pocket. However, If you were classified as an employee, your employer would be responsible for paying half of these taxes.

How To Determine Whether You are an Employee or Independent Contractor

Generally, a worker will be presumed to be an employee unless the employer can prove otherwise.  Many states, including New Jersey and Pennsylvania, have adopted the “ABC” test as a means of determining if a worker is truly an independent contractor.

Under the ABC test, a worker should be classified as an employee unless all of the below apply:

  1. The individual is free from control or direction over the performance of work performed; and
  2. The work is either outside the usual course of the business for which the service is performed, or the work is performed outside of all the places of business of the enterprise for which it is performed; and
  3. The individual is customarily engaged in an independently established trade, occupation, profession or business.

If You Have Been Misclassified, You Need to Take Immediate Action.

If your employer has classified you as an independent contractor you need to have the conditions of your employment evaluated under the ABC test. If it can be determined that your employer would fail in applying every prong of the ABC test to your employment, then you have been misclassified. If you believe you have been misclassified as an independent contractor, you need to speak with a competent Wage and Hour attorney so that the conditions and circumstances of your employment can be properly evaluated. If you have been misclassified you can file a lawsuit against your current and/or former employer to recover backpay and other economic damages.

Do not let your employer get away with misclassifying you as an independent contractor. This is illegal and is costing you money and benefits. Contact Ms. Trabosh if you believe you have been misclassified as an independent contractor. Put an end to your employer’s unlawful conduct today.

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