Employee Misclassified as Independent Contractor
I was hired by a company to work as an employee in their IT department as a Web Developer. After one year and 10 months of employment I talked to my employer about plans to move approximately 100 miles away (because of my live-in boyfriend's occupation). At that time they offered to let me work from home which I started doing exactly 2 years from my original employment (on 2/14/2002). I continued to work for this company in exactly the same manner with the same delegation, control, etc - absolutely nothing changed except for the fact that I telecommuted 4 out of the 5 days a week, and they changed my status to independent contractor. I have reviewd the IRS Checklists for these situations and 80 to 90% if it is in my favor. The company has just informed me that I will no longer be able to work for them because they have many fewer incoming projects. And I found out that now I can't file for unemployment. Are cases like this worth pursuing? Could I get my unemployment and reimbursement for other expenses?
3 answers | asked Sep 15, 2003 6:12 PM [EST] | applies to Texas
Answers (3)
Margie's advice is sound. I would also advise you to ask your lawyer if you may have an ERISA claim for back benefits. There has been a string of cases such as the Microsoft case where employers have been treating employees as contractors and not paying them the proper benefits due under their plan.
posted by Trey Henderson | Sep 15, 2003 7:15 PM [EST]
I meant to write "against the employer" not "against a lawyer."
I don't know how to go back and fix a typo.
posted by Margaret A. Harris | Sep 15, 2003 6:37 PM [EST]
I advise that you file for unemployment and, if the TWC rules against you, appeal that determination. Sounds like your employment status did not change, only your place of work. If you have to go through an appeal of a TWC ruling, you need to either (a) yourself know all the factors that the law examines when deciding whether a person was really an employee (as opposed to an independent contractor) or (b) have a lawyer.
You may find more information that will help you represent yourself (in addition to what you learned at the IRS site) at www.workplacefairness.org, or the U.S. Department of Labor's web site. If you are good at your own internet research, look also for articles about the Microsoft case that was decided several years ago, because they should provide information about the legal test.
Good luck.
P.S. You might want to also think about this with regard to your 2002 tax return because if the company treated you as an independent contractor, it issued you a 1099 rather than a W-2, which means that you were 100% responsible for your FICA -- and the employer should have paid its share of that. And, you might check to see if you were denied any employee benefits too because of that misclassification.
Depending on the harm that you have suffered, it may be worth pursuing a legal claim against a lawyer, but only a one-on-one consultation with a lawyer will answer that question -- and you may have to pay for that legal advice. Generally, it's worth it to get the advice of a lawyer who knows employment law. If there is no lawyer in your area of the state who is listed on this website, check www.nela.org.
posted by Margaret A. Harris | Sep 15, 2003 6:35 PM [EST]
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