What Every Employee Should Know About the Difference Between An Employee and an Independent Contractor

At Joseph & Norinsberg, we help employees vindicate their rights under New York state and federal law when they’ve been discriminated against, harassed, or not paid the wage that they are entitled to.  Though every case is different, there are a number of issues and questions that arise frequently.  One of those is: Does it matter whether I’m an “independent contractor” or employee?  The short answer is: Yes, this is a crucial distinction in employment cases.

Why the Distinction Matters

The distinction between employee and independent contractor is most often thought of as relevant to tax obligations – and it is.  However, the distinction is also crucial in determining whether an individual can bring a lawsuit for wage and hour violations or employment discrimination based on race, color, religion, sex, national origin, or other protected class.  Under New York and federal laws, only employees are protected and thus, only employees can bring suit for these types of violations.  New York City is a notable exception within the state of New York, as it protects independent contractors from discrimination.

How Courts Decide

Under New York and federal law, courts are more concerned with substance than form in determining whether a person is an employee or independent contractor for purposes of employment discrimination or wage and hour claims.  In other words, the fact that a person receives a 1099 form for taxes or is called an “independent contractor” by a business does not necessarily mean that they are an independent contractor.  How courts make this determination involves weighing a number of factors.  The evaluation process is similar but not identical under New York state and federal law.

Under federal law, courts apply the economic realities test, which focuses on whether the individual is financially dependent on the employer.  If they are, they are an employee, regardless of title or agreement.  If they are not, then they are an independent contractor.  In making this determination, courts try to evaluate the relationship as a whole, evaluating any relevant factors, including how much control the business has over the worker, how important the work performed is to core business operations, whether the worker has discretion in how they perform their duties, whether the relationship is permanent and indefinite or for a fixed period of time or project, and whether the worker has his or her own supplies and employees.  Courts are free to take into account other relevant factors and no single factor is determinative.

New York law is similar, but focuses more on the amount of control the business has over the worker’s conduct.  Factors considered include whether the employee is able to perform work for other businesses, whether the worker is on the business’s payroll, and whether the worker is required to work certain hours at a set location.  Like the employee-independent contractor analysis under federal law, courts applying New York law will look at the situation as a whole and are not limited to these factors.

Your Employment Law Case

Whether you are an independent contract or employee is just one of the many issues that may arise in your New York or federal employment discrimination or wage and hour case.  The attorneys at Joseph & Norinsberg have experience navigating these issues to help employees obtain successful outcomes.  Contact us today at info@employeejustice.com or by calling 212-JUSTICE to discuss your options.

2020-09-14T18:38:45+00:00April 10th, 2015|Wage & Hour Violations|

Glowing Client Reviews

I am very amazed and pleased for the wonderful work Diego Barros did for me and our co-workers, speechless to see how wonderful and constructive everything work. First time with Diego Barros and i am totally impressed to have seen how great you have worked for all of us, i will totally recommend you to anybody who is in need of help without at doubt at all in all senses.

Mr. Diego helped me WIN and reach a great settlement. Wages recovered from lack of pay and serious misconducts from employer. He was very informative and easy to talk to every step of the way. Very happy with the settlement I received. He will go for the win and get you what you deserve! If you having problems with employment I give Mr. Diego my full recommendation to get your issues resolved.

Jon and his team are amazing. They fought every step of the way for me and my family. My case was handled with such care and concern and Jon’s honesty gave me great confidence in his ability to win my case.

To have Bennitta Joseph who wins high profile cases against companies like Delta is a win for any company. The fact that they equip entrepreneurs like me with tools to compete with fortune 500 is a competitive advantage. If you are a company that deals with people and wants to succeed, hiring her is a must!

This was the first and hopefully my last lawsuit and the process wasn’t what I thought. The patience shown to me (even when I became frustrated) was great. Everyone showed respect, sensitivity, and I’d recommend the firm to everyone. Losing my job set me behind on several bills, but I can now pay them. The situation I went through will help me going forward.

This was the first and hopefully my last lawsuit and the process wasn’t what I thought. The patience shown to me (even when I became frustrated) was great. Everyone showed respect, sensitivity, and I’d recommend the firm to everyone. Losing my job set me behind on several bills, but I can now pay them. The situation I went through will help me going forward.

Bennitta Joseph is committed to Justice. After be wronged at work in 2015, and discriminated against I felt very hopeless and wronged. I felt as though I had no hope standing up to a corporate giant, and no chance of winning. After explaining my case and sharing the facts Bennitta felt differently. She did warn me it would be a long and tough road and that I had to have thick skin. In my experience if you take Bennitta’s lead and trust her legal experience no case it too big, or too small for her…

Me trataron muy bien y estoy satisfecho con el servicio. Inicialmente llamé para unirme a un caso anterior, pero cuando ya era demasiado tarde para unirme a ese caso, estaban felices de luchar por un segundo caso. No pensé que podrían hacer que otro caso funcionara, pero lo hicieron. Aprendí cuáles son mis derechos en cuanto a salario mínimo y tiempo extra y puedo usar esta información en el futuro. Recomiendo mucho la oficina.

TESTIMONIALS

I am very amazed and pleased for the wonderful work Diego Barros did for me and our co-workers, speechless to see how wonderful and constructive everything work. First time with Diego Barros and i am totally impressed to have seen how great you have worked for all of us, i will totally recommend you to anybody who is in need of help without at doubt at all in all senses.
Ysaac G
Mr. Diego helped me WIN and reach a great settlement. Wages recovered from lack of pay and serious misconducts from employer. He was very informative and easy to talk to every step of the way. Very happy with the settlement I received. He will go for the win and get you what you deserve! If you having problems with employment I give Mr. Diego my full recommendation to get your issues resolved. 
D.F.
To have Bennitta Joseph who wins high profile cases against companies like Delta is a win for any company. The fact that they equip entrepreneurs like me with tools to compete with fortune 500 is a competitive advantage. If you are a company that deals with people and wants to succeed, hiring her is a must!
Karleen L.
This was the first and hopefully my last lawsuit and the process wasn’t what I thought.  The patience shown to me (even when I became frustrated) was great.  Everyone showed respect, sensitivity, and I’d recommend the firm to everyone.  Losing my job set me behind on several bills, but I can now pay them.  The situation I went through will help me going forward. 
Isaiah B.
I had an excellent experience with the firm and with Bennitta Joseph as my attorney. Everyone I dealt with was extremely courteous, friendly and very helpful. The settlement will help me financially as I look for a job.
Kate P.

New York City Employment Attorney Profiles

NEW YORK CITY EMPLOYMENT ATTORNEY PROFILES

Our Successful Case Results

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Reinoso v. New York City Transit Authority

$7.0M

Morse v. Spitzer

$2.5M

Guzman v. City of New York

$2.0M

Code v. City of New York

$1.8M

Williams v. New York City Transit

$1.5M

Dominguez v. Moskowitz, M.D.

$1.4M

Carvalho v. MonteFiore

$1.4M

Zambrano v. Sound Shore Medical Center

$1.0M

R. v. City of New York

$750K

Rivera v. 260 W. 135 LLC

$750K

Levans v. Delta Air Lines, Inc

$600K

Jacqueline Winbush v. City of New York

$500K

Minor v. City of New York

$500K

Dortch v. Montefiore Medical Center

$400K

Zomber v. Village of Garden City

$190K

Marshall v. Randall

$175K

S.A. v. City of New York

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