Employer Misclassification

The Long Island employment attorneys at Famighetti & Weinick PLLC represent workers who have been misclassified by their employers. Employee misclassification occurs when an employer treats a worker as an independent contractor instead of as an employee. The employer does so in an effort to avoid responsibility for additional benefits to which the worker would be entitled if properly classified as an employee. The Employer Misclassification attorneys at Famighetti & Weinick PLLC have extensive experience in handling misclassification cases, and can advise as to whether your employer should be classifying you as an employee rather than as an independent contractor.

Federal law and New York labor laws mandate that employers comply with certain benefits and protections afforded to employees. Employers are not required to provide these same benefits to independent contractors. Accordingly, some employers may try to avoid compliance with laws related to these benefits and protections afforded to employees by misclassifying workers as independent contractors. More specifically, employers may misclassify a worker in order to avoid compliance with: 1) unemployment insurance; 2) minimum wage and overtime laws; 3) tax withholding; 4) temporary disability; 5) Workers' Compensation; and 6) Social Security.

In considering a potential employee misclassification case, it is important to know what factors courts use to determine whether a worker should be classified as an employee or as an independent contractor. Depending on the context, several different legal tests may be used to determine whether the employee is an independent contractor or an employee, including the economic realities test and the right-to-control test.

Employers may try additional tricks to make an employee think they are an independent contractor. For example, an employer may claim that receiving a 1099 automatically makes a worker an independent contractor, which is not the case. Also, a worker does not become an independent contractor just by virtue of the fact that an employer has them sign an agreement stating that the worker is an independent contractor. It is important to consult with a competent and knowledgeable attorney to determine whether your employer has misclassified you as an independent contractor.

Perhaps the most important federal law implicated in employee misclassification cases is the Fair Labor Standards Act (FLSA). Since the FLSA sets minimum wage and overtime rates only apply to employer-employee relationships, some employers attempt to avoid compliance by misclassifying their workers as independent contractors. New York labor laws involving minimum wage and overtime rates in many ways mirror the FLSA, but in other aspects provide greater benefits and protections to employees. One such notable example is the minimum wage rate. Under the FLSA, minimum wage for nonexempt employees under is $7.25/hour. However, New York labor laws provide for increased minimum wage rates that vary depending on number of employees and geographic location within the state, but in all cases will reach $15.00/hour by 2021.

The Long Island Employer Misclassification attorneys at Famighetti & Weinick PLLC have handled numerous cases involving employer misclassification. Do not let your employer take advantage of you by classifying you as an independent contractor, thereby denying you minimum wage, overtime pay, and other benefits due to employees under the FLSA and New York labor laws. If you believe you are the victim of Employer Misclassification, please do not hesitate to contact Famighetti & Weinick PLLC today.