Independent contractor or an employee? Withholding final paycheck? NE
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Independent contractor or an employee? Withholding final paycheck? NE
I was recently laid off as a graphic designer/client virtual assistant for a small business of 4-5 people. I previously worked at this business as an employee for $15 an hour but after relocating, I was rehired to work remotely as an independent contractor at $30 an hour. The intent was that I would work full-time work without a contract and no benefits. My job responsibilities were similar to when I first started working remotely but changed slightly toward the end. I worked pretty set hours M-F with some flexibility, however I had to ask my boss for time off or give notice if I’d be gone part of the day. Although I worked on my own computer, they paid for my Adobe and Microsoft Office subscriptions and required me to use activity tracking software that took screenshots. I was required to do my work exactly as requested, was required to attend team conference calls and weekly 1-on-1 meetings, and submitted a timesheet every 2 weeks. My
Asked on March 15, 2018 under Employment Labor Law, Nebraska
Answers:
SJZ, Member, New York Bar / FreeAdvice Contributing Attorney
Answered 6 years ago | Contributor
1) You have no right to the design files if you made them for work or as part of your job or using their software (e.g. software they paid for) and equipment: in all those cases, the files belong to them. Anything created for or as part of your employment belongs to the employer, as does anything made using resources they either provide or pay for.
2) You have no right to the juicer: it was sent to you clearly for work (to make a video) and was therefore clearly not a "gift" to you. It was a tool or resource and must be returned.
You may be sued for the above, if you don't return them.
3) Based on what you write, you were likely an employee, not an independent contractor: they exercised a degree of control over you which is not consistent with independent contractor status. Therefore, they a) cannot withhold your final paycheck; b) should have paid the employer share of social security, medicare, etc. tax; c) you may have been eligible for benefits; and d) you should be eligible for unemployment. However, to get those things, you will need to either bring a complaint to the department of labor for misclassification or bring a lawsuit. A good idea would be to reach out to the dept. of labor first: if they can help you, their help is free. You can always hire a lawyer later.
But don't muddy the waters with your own bad behavior: return the juicer and files, so the whole issue becomes what they did wrong and you are firmly on the side of the angles, so to speak.
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