INDEPENDENT CONTRACTOR MISCLASSIFICATION

Many workers contact us because their “employer” has wrongfully and illegally classified them as an independent contractor.  Why do employers seek to pay employees as independent contractors instead of employees?  For starters, treating someone as an independent contractor allows an employer to avoid paying payroll taxes, unemployment insurance, minimum wages, overtime pay, vacation pay, holiday pay, and health insurance.  These tax savings have been found to cut labor costs for employers by as much as 20 to 40 percent.  However, federal laws provide protections for employees who are considered “employees” as opposed to “independent contractors.” 

Some industries are more likely to misclassify its workers than others.  For example, we have handled cases on behalf of cable and wireless internet installers who have been misclassified as “independent contractors” and are owed substantial overtime wages.  Other industries that are likely to misclassify workers are the delivery and trucking industry, janitorial industry, home health care industry, construction industry, and childcare industry. 

In determining whether a worker is an employee or independent contractor, the existence of a written agreement or contract claiming to establish an independent contractor relationship is irrelevant.  Similarly, the fact that a worker is issued a Form 1099, instead of a W-2 Form, is irrelevant in determining independent contractor status. 

The factors a court will consider in determining whether someone is truly an “employee” or “independent contractor” are:

  • The degree of control that the “employer” has over the manner in which the work is performed;
  • The worker’s opportunities for profit or loss dependent on his managerial skill;
  • The worker’s investment in equipment or material, or his employment of other workers;
  • The degree of skill required for the work;
  • The permanence of the working relationship; and
  • The degree to which the services rendered are an integral part of the “employer’s” business.

Experienced Lawyers in Independent Contractor Misclassification

The attorneys at Falls Legal are experienced in independent contractor misclassification issues and have the knowledge and expertise to ensure your employer correctly classifies your employment status.  If you have questions regarding independent contractor misclassification in Charleston or South Carolina, contact Falls Legal to learn more about your right. 

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