Signing a Contract Saying I’m an Independent Contractor
Under the New York Wage Theft Prevention Act, employers have a number of expanded duties related to yearly pay notices, wage statements, and providing freedom from retaliation for possible violations of New York's Labor Law. There are significant penalties for private sector employers that fail to comply with the law, including those that retaliate against employees who try to assert their rights. The wage law attorneys at Phillips & Associates are aware that many New York City employers try to get around the misclassification rules by having employees sign a contract claiming to be independent contractors. Simply forcing workers to sign contracts in which they claim independent contractor status is usually not enough on its own to transform an employee into an unprotected independent contractor, and courts have consistently found these contracts unenforceable given the circumstances.Signing a Contract Saying "I'm an Independent Contractor"
In order to raise Labor Law or many other employment claims, plaintiffs need to demonstrate they are employees. Generally, an independent contractor is not an employee. However, many employers misclassify workers solely for the purpose of avoiding the mandates of the Labor Law and other laws, so that they can save money. Whether you are actually an independent contractor may involve a nuanced legal analysis.
Some industries, such as the transportation industry, have special rules related to independent contractors and employers. Every case is different, and the analysis is fact-sensitive. Whether you will actually be found an independent contractor may vary depending on whether you bring a claim under the Fair Labor Standards Act (FLSA) or the New York Labor Law.
Under the FLSA, the court will usually examine the amount of control the employer exercises over a worker, the worker's opportunity for profit or loss and investment in the business, the degree of skill or independent initiative needed to perform the job, the duration of the working relationship, and the extent to which the work is integral to the employer's business.
Under the New York Labor Law, the court will look not only at the degree of control the employer has over the worker, but also at whether a worker worked at his or her own convenience, a worker's ability to simultaneously engage in other employment, the existence of fringe benefits, whether the worker was on a fixed schedule, and whether the worker is on the payroll.
For example, if you work from 9:00 a.m. to 5:00 p.m. at a nail salon as a manicurist, and you were required to sign to sign a contract stating that you are an independent contractor, even though you take direction from your boss, providing manicures is part of the nail salon's business, there is a non-compete clause, and you do not have your own independent manicure business, you are probably entitled to be paid minimum wage and overtime. The minimum wage in New York is presently $8.75 per hour and on December 31, 2015, it will increase to $9.00 per hour.Consult a New York City Attorney to Pursue an Overtime Claim
There has been a crackdown on misclassification in New York by the Department of Labor and other agencies at the state and federal levels. If you were forced to sign a contract essentially saying that you were an independent contractor when you are may actually be an employee, you should consult and retain a knowledgeable New York City lawyer who is familiar with overtime and minimum wage claims. Call Phillips & Associates at (212) 248-7431 or contact us through our online form to set up a free consultation. We serve employees throughout the five boroughs of Manhattan, Queens, the Bronx, Brooklyn, and Staten Island, as well as Westchester County and Long Island.
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