If my employer has purposefully misclassified me as an independent contractor for years and now wants me to sign a very restrictive employee contract in order to keep working, what are my rights?
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If my employer has purposefully misclassified me as an independent contractor for years and now wants me to sign a very restrictive employee contract in order to keep working, what are my rights?
I have worked steadily for over 6 years with a company and been treated like an employee without any of the benefits of being one. I was not hired for any special skill, have been thoroughly trained and supervised by them at all times, am not paid per project, but by
hour, and have done the same work for them for years, on a permanent basis with them controlling all that I do. Now, after all this time, they are requiring me to sign a restrictive employee contract and are acting like I’m just coming aboard. The contract is in no way beneficial to me, in fact, it gives them attorney in fact privileges to sign my name, restricts me from pursuing any other money making
opportunities outside of them, denies me the right to sue at a later date and states that they can dictate where I work broad, could be out of state or even country, even though I have been working remotely this whole time. This company is slippery. They have required me to do illegal things in my work day and I noticed that the signature was placed in the middle of the employee contract, in hopes that I
wouldn’t read further and just sign. This honestly comes out of nowhere the contract and restricts other endeavors I’m currently pursuing, but if I don’t sign and it stops me from working, then I will not be able to pay bills and stand to lose a lot. Ultimately, I think it would be best to part ways, since they are so sneaky but would need some sort of severance to keep me afloat until I can find another job. How should I go about this?
Asked on December 26, 2017 under Employment Labor Law, California
Answers:
SJZ, Member, New York Bar / FreeAdvice Contributing Attorney
Answered 6 years ago | Contributor
You don't have any right to keep working without signing the agreement: whether you are an independent contractor or an employee, at any time, your employer can ask you to sign an employment contract of one kind or another and if you don't, they may terminate you. (The only exception is if you are already covered by a written employment contract; then they could not fire you for not signing a new one, if the existing contract prevented that.)
If they misclassified you--and based on what you write, it seems very likely that they did--you could bring a legal action to get some or all of what should have been paid to or for you had they properly treated and paid you as an employee, such as:
1) The employer portion of social security and Medicare taxes (around 6-7% of salary per year);
2) The value of health insurance which employees in similar positions to what you actually did at this company (or at similar "levels" to the one you effectively occupied) received--i.e. if you would have received health insurance, or any employer contribution to health insurance, had you done the same exact thing but been properly treated as an employee;
3) As above for other benefits, such as PTO or pension;
4) If not overtime exempt, overtime when working more than 40 hours per week (and if paid hourly, base pay for all hours worked).
It would be worth speaking with an employment law attorney to see what you might be entitled to and if it is worth taking legal action.
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