Wednesday, October 5, 2011

Am I Really a 1099 Independent Contractor? Do I Have a Right to Seek Classification as a w-2 Employee?

What Are the Differences Between Being Paid as an Independent Contractor Versus Being Treated as a w-2 Employee?


Employees Only
Employees paid on a w-2 basis are entitled to all company benefits, unemployment and workers' compensation benefits and protection under state and federal employment laws including Title VII, the Family and Medical Leave Act and the Fair Labor Standards Act (overtime).

Independent contractors are deemed to be self-employed, and are entitled to none of these benefits and protections.

Treated as if Non-Existent
That is why seeking reclassification can be so critical.

Click Here to jump to our comprehensive Post on misclassification.

Is There Anything I Can Do If I am Being Paid as an Independent Contractor (1099) Versus as a w-2 Employee?

If you are being paid on a 1099 basis, that means you have been classified as an "independent contractor."  But that does not necessarily mean you are in fact an independent contractor under the law. 

The legal authorities will make the ultimate determination of your legal status if you seek their input.

Tax Authorities, Courts and Administrative Agencies Deal With Independent Contractor Issues on a Regular Basis

If you believe you should be called a w-2 employee even though your employer calls you an independent contractor, there are a number of ways to go about seeking "reclassification."

State and federal taxing authorities and labor departments commonly analyze this issue, and will do so on your behalf if you inquire.

However, such governmental agencies will sometimes do little more than correct your status on a go forward basis, as opposed to seeking compensation for the losses you suffered in the past as a result of being misclassified (this is especially true of the IRS).

How Can I Recover the Losses I Sustained as a Result of Being Misclassified as an Independent Contractor?

Deprived of Overtime or FMLA Rights?
Double Damages Available
The best way to do that is through a legal proceeding in court.  I frequently handle such cases on a contingent fee basis.  These cases can be worth big dollars, particularly if you have been deprived of overtime (you can get double damages), were treated unlawfully (under Title VII, or the Family and medical leave Act) or are one of many workers who have been misclassified.

Class Action Misclassification Cases Common

You Can Get Unemployment in Pennsylvania Even if You Are Initially Viewed as a Self-Employed Independent Contractor


If you are terminated from a job that treated you as an independent contractor, you will not be eligible for unemployment because no wages will have been reported for you, and self-employed people are not permitted to get unemployment benefits in Pennsylvania

If you have been getting unemployment benefits, and take a part-time job as a 1099 independent contractor, your right to unemployment will be cut off, because is you are self-employed, you are deemed to be engaged full-time in an independently operated trade or business, and ]cannot get unemployment.

Your Right to Pennsylvania Unemployment Benefits will be Reinstated if You Can Prove That You Were in Fact an Employee That Should Have Been Paid w-2 Wages

However, we have won many unemployment claims in Pennsylvania by proving that a worker designated as an independent contractor was in fact a "true employee," that should have been paid w-2 wages.


I Have Been Helping Workers Get Reclassified Since 1991
Philadelphia Are Employment Attorney Representing Employees

John A. Gallagher is an employment lawyer who represents employees in Pennsylvania. 

John typically represents employees who need an employment lawyer in Philadelphia County, Chester County, Delaware County, Bucks County, Berks County, Lancaster County and Montgomery County.

Pennsylvania Employment Attorney Provides Free Telephone Consultations

If you are looking for an employment lawyer, and live in Malvern, Wayne, King of Prussia, Downingtown, Glenside, Doylestown, Radnor, Newtown Square, Exton, Philadelphia, West Chester, Skippack, Langhorne, Haverford, Nether Providence, Broomall, Drexel Hill, Reading or any of their surrounding towns, feel free to send me an e-mail or give me a call.  I am always glad to spend some time with people via a free telephone consultation.

Need an Employment Labor Lawyer Near Philadelphia?

Click Here if you have questions about any aspect of employment law, from wrongful termination, to wage and overtime claims, to discrimination and retaliation laws, to Family and Medical Leave

Click Here if you have questions about any aspect of Pennsylvania Unemployment Law, from willful misconduct, to voluntary quit, to Referee Hearings, to severance issues

Click Here to e-mail John directly.

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