How do I know whether or not I am an employee or a subcontractor?

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How do I know whether or not I am an employee or a subcontractor?

Last year I was hired to work in an office for a home remodeling showroom. I signed a W4 and was issued an employee handbook and was given a salary. Then the owner asked if I would help out in the sales department for a “bit”. Then his company started doing poorly so he asked me to sign a W9 or I would loose my job. Now I am commission based on jobs I sell and I have to deduct my own taxes. However, nothing has changed. I use his showroom, work hours told to me by my sales manager, use his samples, I am required to go to training, I am not to take my jobs to other companies. Isn’t he evading taxes?

Asked on July 20, 2011 Tennessee

Answers:

M.T.G., Member, New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

Yes it sounds like he is.  And it sounds like you are without a doubt an employee in every sense of the word.  If you can prove that you are an employee then that would help here.  And it is the little things that matter like showing a phone list with your name and extension on it.  Showing a schedule that proves your days worked.  E-mails to an e-mail address for the company.  And e-mails from your boss showing control and supervision over what you do.  How you wish to use all of this evidence is up to you and you should speak with an employment attorney in your area.  Good luck.


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