INDEPENDENT CONTRACTOR LAWYER HANDLING EMPLOYEE MISCLASSIFICATION

How you are classified as an employee can have an enormous impact on your rights and what you are paid. If you believe you have been misclassified, an experienced independent contractor attorney can help you bring a claim against your employer to recover the wages and benefits you were entitled to receive. At Swartz Law, a business and employment law firm, we represent clients with misclassification claims in Boston and throughout Massachusetts.

Employee v. Independent Contractor

Independent contractors have far fewer rights than employees in the workplace. For example, independent contractors are not entitled to job-related benefits. Also, employers are not required to pay taxes for independent contractors. Instead, independent contractors have to pay their own self-employment tax. Whether intentionally or by accident, employers do misclassify employees as independent contractors.

Massachusetts has a strict independent contractor law. All three of the following factors must be present to be validly classified as an independent contractor:

• You are free from control and direction in connection with the performance of your work, both under any contract and in the reality of your job;
• Your work is performed outside the usual course of the business of your employer; and
• You are customarily engaged in an independently established trade, occupation, profession or business of the same nature as the work you do in your job.

It is extremely difficult to legally classify a worker as an independent contractor in Massachusetts due to these factors. If you are working and receiving a check without taxes being withheld, you may very well have a claim.  The amount of damages is dependent upon how much employer tax you paid, what wages (such as overtime) and benefits (such as retirement plan and insurance company contributions) you should have been paid as an employee.

Under the Massachusetts Wage Act, if your employer misclassifies you as an independent contractor, you can sue for three times the amount owed and your attorney fees.

Exempt v. Nonexempt

The Fair Labor Standards Act (FLSA) covers most jobs and requires that employers pay their employees minimum wage and overtime (at one and one-half the regular rate of pay for hours worked in excess of 40 hours each week). However, the FLSA provides an exemption for employees working in certain jobs.  Many of the rights and protections given to nonexempt workers under the FLSA do not apply to exempt workers. For example, an exempt worker does not have a right to overtime pay or other legal rights such as meal and rest breaks. Some jobs are exempt by definition under the law. However, most jobs must meet certain tests to qualify as exempt. With a few exceptions, the worker must be paid a minimum weekly amount, be paid on a salary basis, and perform exempt job duties. The job duties test falls under 5 main categories: outside sales, executive, administrative, professional and computer employees.

Determining whether you are properly classified can be complicated. If you are concerned your rights are being violated, you need an experienced employment lawyer to help evaluate your situation and determine whether you have a claim.