What to do if I’ma subcontractor being treated as an employee?

UPDATED: Feb 21, 2012

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What to do if I’ma subcontractor being treated as an employee?

I am looking for answers on what to do.

Asked on February 21, 2012 under Employment Labor Law, New Jersey


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

If you are suffering any loss due to the misclassification, you could potentially bring a lawsuit for recovery or compensation. Before you do, however, you should think about whether it is in your interest to do that. Normally, when there is a misclassification problem, it's the other way around--an employee treated like a contractor. That generally causes a real loss, since the employee loses out on the employer contribution to FICA, potentially on overtime, vacation days, health insurance, 401(k) match, etc.

However, if a contractor is treated like an employee, it would seem that this has the potential to be economically beneficial for you; certain things, like the employer portion of FICA, may be paid on your behalf. Therefore, while you should be classified correctly, before going to the expense and trouble of legal action, consider whether doing so is in your interest. If you do want to take action, consult with an employment law attorney--many provide a free initial consultation to evaluate a case.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although AttorneyPages.com has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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