• Skip to primary navigation
  • Skip to main content

Third Ear Conflict Resolution

Court sucks. Let us help you create a sustainable resolution.

  • About
    • Our Vision
    • Nance L. Schick
    • In the Media
  • Who We Serve
    • Domestic Employers
    • Professionals and Employees
    • Employers and Managers
    • Small Business Owners
  • Services
    • Conflict Resolution
    • Employment Law
    • Education and Training
  • Resources
    • Blog
    • DIY Conflict Resolution Book
    • Newsletter
    • YouTube Channel
  • Contact
    • Community Engagement
  • Show Search
Hide Search

How to Identify a True Independent Contractor

Nance Schick · May 20, 2024 ·


DISCLAIMER: This post provides a general overview of employment conflicts that might arise when working with independent contractors. It is not legal advice. If you require information or advice applied to your unique situation, please make an appointment to discuss it with an attorney experienced with the subject matter. Don’t rely solely on what you read on the Internet. Ever.


Independent contractors are not employees. They are self-employed individuals who provide services to businesses on a contract basis. However, the line between independent contractors and employees can be blurry, and misclassifying a worker can have serious consequences for businesses.


The Dangers of Misclassifying Workers

In New York, the Workers’ Compensation Board and the Department of Labor have the authority to determine whether a worker is an employee or an independent contractor. The factors they consider include:

  • The degree of control the client exercises over the worker
  • The worker’s opportunity for profit or loss from providing services to clients
  • How much the worker has invested in the business (e.g., advertising, business cards, equipment, licenses, supplies, vehicles, website)

If the WCB or DOL determines that a worker has been misclassified, the client business is deemed the employer and could be liable for:

  • Back wages
  • Overtime pay
  • Payroll taxes and withholdings
  • Safe and Sick Leave pay
  • Workers compensation, disability, and Paid Family Leave benefits
  • Fines, penalties, and interest

Gig Worker Is Not a Legal Classification

The WCB or DOL has the power to decide who is an employee, even if you and the worker both want an independent relationship. Your contract is not controlling and can be ignored. You might know them as:

  • Freelancers
  • Gig workers
  • Independent agents
  • Independent contractors
  • Permalancers
  • Subcontractors
  • Vendors

Call them what you like. If they you are issuing 1099-NEC forms with their social security numbers instead of employer identification numbers, you might be an employer instead of a client.



Events That Might Cause a Worker Classification Inquiry or Audit

There are a number of events that can trigger a WCB or DOL inquiry into whether a worker has been misclassified. These include:

  • A new business entity registers for an employer identification number, even if the intent is only to pay the sole shareholder a salary.
  • An independent contractor begins to work beyond the scope of the original project, quits, and files for unemployment insurance benefits, listing clients as employers to maximize the amount of benefits payable.
  • An outside sales representative is involved in an accident while going to or from a sales meeting and files an injury claim.
  • The income tax return for a business with high income and no employees reports a substantial deduction for outside labor.
  • A freelancer files a claim under the Freelance Isn’t Free Act.


Planning to hire help?

Request a Consultation


Freelancer Misclassification: The Risks and How to Protect Yourself

Workers Compensation Penalties employment contracts, freelancers, independent contractors, self-employment, small business success, worker misclassification

About

Nance L. Schick Affiliates Blog Book Contact

The Seven Choices

Forgive Yourself Acknowledge Yourself Forgive the World Free the Emotions Clear Your Mind Assume Nothing Listen with Your Heart

The Five Actions

Define the Conflict Identify the Interests Play with the Possibilities Create the Future Stay on PARR

Attorney Advertising. Privacy Policy. Nance L. Schick © 2007–2025

  • Your Third Ear
  • Email
  • Facebook
  • LinkedIn