Worker Misclassification occurs when a person or entity classifies a worker as a non-employee. Whether intentional to avoid the costs of unemployment, workers compensation (“WC”), and disability (“DB”) insurance, or unintentional misunderstanding of a homeowners’ insurance policy and tax laws, the penalties can be in the tens of thousands.
The workers at issue can be known as freelancers, independent agents, permalancers, subcontractors, and more. Call them what you like, but if they have not established business entities to provide the services they are providing, you might be responsible for income tax withholdings, overtime pay, and payroll taxes. You might even be responsible for providing the contract that details the services they will provide, despite the fact that they are the experts in the work to be done.
Technology and the “gig economy” have made the distinctions between employees and independent contractors difficult to identify, and no industry is immune. NYS has been penalizing businesses of all sizes for misclassifying workers, even when there has been an honest mistake and no actual harm.
- A freelancer files a claim under the Freelance Isn’t Free Act (“FIFA”)
- Your independent contractor begins to work beyond the scope of the original project, quits, and files for unemployment insurance (“UI”) benefits, listing you as an employer
- Your outside sales representative is involved in an accident while going to or from a sales meeting
- You register for an employer identification number (“EIN”) and hire an employee
- You incorporate your business or form a limited liability company (“LLC”) and run your first payroll, even if you only pay yourself
We encourage you to schedule a Consultation with us (or an attorney with experience defending Worker Misclassification issues) to discuss your risks, before you hire any individual worker who does not own and operate a business that provides the same service you are hiring them to provide. You are at especially high risk of having individuals deemed your employees.
For more guidance on this topic, see the below blog posts:
- Six Things You Must Know Before You Hire Your First Workers
- Four Things You Need to Know About Worker Classification
- FAQ: What happens if the Board finds me liable, but I don’t have WC insurance?
- Nine Reasons Not to Hire Undocumented Workers
- Five Issues the NYS WCB Doesn’t Care About in the Claim Against You
NOTE: This page and website contain attorney advertising and a general overview of worker misclassification. It is not legal advice. If you require information or advice applied to your unique situation, please make an appointment to discuss it with an attorney experienced with the subject matter. Don’t rely solely on what you read on the Internet. Ever.
Nance L. Schick, Esq. is a New York City attorney and mediator who focuses on keeping people out of court and building their conflict resolution skills, especially in business and employment disputes. Her holistic, integrative approach to conflict resolution draws from her experience as a crime victim, human resources supervisor, minor league sports agent, and United Nations representative. She is a 2001 graduate of the State University of New York Buffalo Law School trained in Alternative Dispute Resolution (ADR) by the Equal Employment Opportunity Commission (EEOC), Financial Industry Regulatory Authority (FINRA), and International Center for Ethno-Religious Mediation (ICERM). She is also creator of the Third Ear Conflict Resolution process, author of DIY Conflict Resolution: Seven Choices and Five Actions of a Master, and an award-winning entrepreneur, who has been acknowledged by Super Lawyers (ADR, 2018), the New York Economic Development Corporation/B-Labs (Finalist, Best for NYC 2015 & 2016), U.S. Chamber of Commerce (2015 Blue Ribbon Small Business), Enterprising Women Magazine (Honorable Mention, 2014 Woman of the Year awards), and Urban Rebound NY/Count Me In (Finalist, 2013 Pitch Competition).