Enplyer won'
My employer won't put me on payroll on the claim that I am not an employee, but a consultant. I certainly *am* an employee. What can I do to make my employer comply? Is there a governmental department i should report him to? Thank you very much.
1 answer | asked Jun 16, 2005 6:21 PM [EST] | applies to New York
Answers (1)
How Your Job is Classified
Employees are expensive. If an employer has employees, the employer needs to not only deduct social security taxes from your pay but pay an additional amount equal to the amount deducted from your pay. In addition, the employer would have to cover you with Workers' Compensation and Unemployment Compenssation, and, most expensive of all, pay you time-and-one-half for overtime.
Some employers might take on additional expenses such as medical and pension benefits.
Then, there are other cost that are more difficult to quantify, such as the costs involved in giving employees leave under the Family Medical Leave Act.
To reduce those costs, employers who are unscrupulous will do things such as pay employees off-the-books, call employees "consultants" or "temporary employees," or pretend that non-exempt employees (that is, entitled to overtime) are exempt employees. Employer try to pull this last thing by making employees salaried rather than hourly employees.
Now, how do employees combat this? Well, it depends on what you want to do. If you just want to get the government in to make your employer straighten out you can call any number of agencies. (Frankly, given the current political atmosphere, I'm very skeptical about how helpful the government will be when it comes to complaints from employees.)
If the employer is keeping you off the payroll, and you want on the payroll, you could call the IRS or the New York State Department of Taxation and Finance. You could also call the Workers' Compensation Board or Unemployment Compensation Board. If health benefits or pensions are an issue, you could call the U.S. Department of Law.
However, employees who are off-the-books have to be careful about calling the tax authorities, because, by being paid off-the-books, your employer may have made you criminally liable for unpaid income taxes. Employees who are treated as "consultants" who get 1099s and report their income on Schedule C are probably safe in complaining to the tax authorities.
Simply because an employer classifies you as something does not mean that is the final word. However, the question of your classification does not come up unless you or some government entity brigns it up. Once it is brought up, a court or the agency will look at all of the facts to determine whether you are an employee, and whether you are an exempt or non-exempt employee. There is actually a lot of law out there that helps in determining your correct classification.
If you get hurt on the job, you should apply for benefits with Workers' Compensation. The employer might say you are not an employee, but you can challenge that assertion. If you succeed in your challenge, Workers Compensation will realize that your employer is not paying Workers' Compensation for you (and probably other employees), they'll get on your employer, and you'll be able to get benefits even though the employer has not treated you as an employee.
The same is true for Unemployment Benefits. If you are fired, and you think you were an employee, apply for Unemployment Benefits. If you push, you'll get the benefits, and your former employer might be faced with an State auditor going through its books to determine the amount of money owed for Unemployment Compensation Benefits. There are penalties involved.
If you have been working long hours without getting overtime, you can sue for the overtime. A court will look at the facts to determine whether you are entitled to overtime, but, if the court determines you are a non-exempt employee, you'll get twice the amount of overtime due, plus your attorney's fees.
Now, if what you are concerned with are medical or pension benefits, things get a lot more complicated. You'll definitely need the help of an attorney, just to make a preliminary determination of your rights. That attorney will immediately want to see a copy of the "summary plan description" or benefits book for that benefit.
posted by David M. Lira | Jun 17, 2005 09:13 AM [EST]
Employees are expensive. If an employer has employees, the employer needs to not only deduct social security taxes from your pay but pay an additional amount equal to the amount deducted from your pay. In addition, the employer would have to cover you with Workers' Compensation and Unemployment Compenssation, and, most expensive of all, pay you time-and-one-half for overtime.
Some employers might take on additional expenses such as medical and pension benefits.
Then, there are other cost that are more difficult to quantify, such as the costs involved in giving employees leave under the Family Medical Leave Act.
To reduce those costs, employers who are unscrupulous will do things such as pay employees off-the-books, call employees "consultants" or "temporary employees," or pretend that non-exempt employees (that is, entitled to overtime) are exempt employees. Employer try to pull this last thing by making employees salaried rather than hourly employees.
Now, how do employees combat this? Well, it depends on what you want to do. If you just want to get the government in to make your employer straighten out you can call any number of agencies. (Frankly, given the current political atmosphere, I'm very skeptical about how helpful the government will be when it comes to complaints from employees.)
If the employer is keeping you off the payroll, and you want on the payroll, you could call the IRS or the New York State Department of Taxation and Finance. You could also call the Workers' Compensation Board or Unemployment Compensation Board. If health benefits or pensions are an issue, you could call the U.S. Department of Law.
However, employees who are off-the-books have to be careful about calling the tax authorities, because, by being paid off-the-books, your employer may have made you criminally liable for unpaid income taxes. Employees who are treated as "consultants" who get 1099s and report their income on Schedule C are probably safe in complaining to the tax authorities.
Simply because an employer classifies you as something does not mean that is the final word. However, the question of your classification does not come up unless you or some government entity brigns it up. Once it is brought up, a court or the agency will look at all of the facts to determine whether you are an employee, and whether you are an exempt or non-exempt employee. There is actually a lot of law out there that helps in determining your correct classification.
If you get hurt on the job, you should apply for benefits with Workers' Compensation. The employer might say you are not an employee, but you can challenge that assertion. If you succeed in your challenge, Workers Compensation will realize that your employer is not paying Workers' Compensation for you (and probably other employees), they'll get on your employer, and you'll be able to get benefits even though the employer has not treated you as an employee.
The same is true for Unemployment Benefits. If you are fired, and you think you were an employee, apply for Unemployment Benefits. If you push, you'll get the benefits, and your former employer might be faced with an State auditor going through its books to determine the amount of money owed for Unemployment Compensation Benefits. There are penalties involved.
If you have been working long hours without getting overtime, you can sue for the overtime. A court will look at the facts to determine whether you are entitled to overtime, but, if the court determines you are a non-exempt employee, you'll get twice the amount of overtime due, plus your attorney's fees.
Now, if what you are concerned with are medical or pension benefits, things get a lot more complicated. You'll definitely need the help of an attorney, just to make a preliminary determination of your rights. That attorney will immediately want to see a copy of the "summary plan description" or benefits book for that benefit.
posted by David M. Lira | Jun 17, 2005 09:13 AM [EST]
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