Independent Contractor or Employee?
Our attorneys at Ogborn, Summerlin & Ogborn are prepared to handle a broad scope of workplace litigation. In the past, our lawyers have represented employees and employers in matters ranging from age discrimination to unfair labor practices. Our attorneys have experience with Fair Labor Standards, Employee Rights and issues relate to small business health insurance plans. Our law firm also offers Employment Practices Counseling and Training.
However, as business trial lawyers (not litigation attorneys) we are frequently involved in disputes between an employee and an individual that may be either an employee or an independent contract. In some instances, the individual is being treated as an employee (a company is withholding taxes for example) and he or she wishes to maintain the status of an independent contractor in order to claim self-employment business deductions. More often however, the case involves the reverse. A worker or contact employee will sue for employee benefits on the grounds that he or she is being treated as an employee, and therefore deserves the corresponding employee benefits. As health insurance plans have increased in cost, these disputes have become more common.
Our law firm represented an insurance company that had employees, and also had sales people that were independent contractors. The ICs signed independent contractor agreements, and were not given IRAs or other employee benefits. However, they felt that they were, in essence, employees and sued to collect eight years of employer matching for simple IRAs and health insurance employee benefits. Our law firm prevailed on behalf of the insurance company.
A number of governmental entities have laws or regulations on the subject of Independent Contractors, many of which are based on the common-law "right to control test". The Bureau of National Affairs, the Fair Labor Standards Act, and the IRS all have rules, regulations, and guidelines. The IRS has 20 determining factors: Risk of profit or loss; Continuing relationship; Compliance with instructions; Training; Personal services required; Integration into the business; Control over the hiring, supervising, paying of assistants; Set hours of work; Full-work requirement; Working on the employer's premises; A required work order or sequence; Required reports; Payment by the hour, week, or month; Payment of business or travel expenses; Furnishing of tools and materials; Investment in facilities; Working for more than one firm; Worker's availability to the general public; Employer's discharge rights; Worker's termination rights.
At OSO we are equal opportunity business trial lawyers and also represent employees and independent contractors in disputes against employers and businesses, as well as defend the businesses in similar litigation.
If you are an employee or independent contractor with a dispute as to employment status and employee benefits in either Colorado or Nebraska, we urge you to call or contact our law firm today.
