Diligent And Approachable Representation

Employee or contractor: Which am I under New York law?

On Behalf of | Dec 21, 2021 | Employment Law |

In Staten Island, throughout New York and across the United States, there has been significant debate recently about worker status and what constitutes an employee or an independent contractor. This is an important distinction because people who are classified as employees are accorded certain rights under the law such as minimum wage, overtime, sick pay and more. Independent contractors are viewed differently and are not granted those same rights. In some cases, the situation is clear. In others, it is muddled with the employer potentially taking advantage of a worker who is unaware of his or her rights. Knowing the facts about this relationship is key.

The basics of employees vs. independent contractors

The fundamental difference between being an employee and an independent contractor can be boiled down to whether the employee is under the control of the employer or not. With jobs in which there is an employer-employee relationship, there is no definitive factor that will automatically categorize a person as an employee. However, if the person is told when, where and how to work; what they will use to perform their duties; are under direct supervision; are told the hours they are expected to be on the job; are working exclusively for the employer during the time they are on the clock or salaried; are informed of their pay rate; are subject to evaluation; and must ask permission to take time off, these are hallmarks of being an employee.

By contrast, the independent contractor is not under that same authority. They are not supervised, directed or under control regarding how they go about their job. An independent contractor might provide a certain service that the workplace requires like painting or repairs. If, for example, a machine breaks down and a repairperson from outside is called to fix it, that is not an employee. The independent contractor can refuse to perform certain tasks. Employees generally cannot do that if it is part of their duties of employment. Other cases can be confusing such as a delivery worker for a restaurant. In some cases, that individual is working on his or her own for a delivery app. In others, it is an employer-employee relationship working directly for the restaurant.

Having professional advice is imperative if there is confusion about worker status

This is more than a simple misunderstanding. It is a violation of employment law. People who have been misclassified as independent contractors when they were employees could be deprived of insurance, fair compensation, unemployment coverage and other basic rights. To be fully protected and hold employers accountable, it is wise to have professional help to settle the disagreement amicably or to move forward with a legal case.