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Phillips Esq.
Phillips Esq., Attorney-at-Law
Category: Employment Law
Satisfied Customers: 17909
Experience:  B.A.; M.B.A.; J.D.
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Can I seek damages against an employer who purposefully misclassified

Customer Question

Can I seek damages against an employer who purposefully misclassified me as an "independent contractor"? I worked as an "independent contractor" for them for months- my shifts were scheduled, I was paid hourly and they micro-managed my every action. They then offered me a job as an employee but never changed my status to employee. Then, they fired me out of the clear-blue sky after I had already quit my main job days earlier to join them. They said that I was "trying to make my own schedule" and that they "made a mistake by hiring me before they were ready." It has been tremendously stressful and now I am out a steady job and wages I was expecting.
Submitted: 1 year ago.
Category: Employment Law
Expert:  Phillips Esq. replied 1 year ago.
Hello: This isCustomer I am a licensed Attorney and I will be assisting you today.
Can I seek damages against an employer who purposefully misclassified me as an "independent contractor"? I worked as an "independent contractor" for them for months- my shifts were scheduled, I was paid hourly and they micro-managed my every action. They then offered me a job as an employee but never changed my status to employee. Then, they fired me out of the clear-blue sky after I had already quit my main job days earlier to join them. They said that I was "trying to make my own schedule" and that they "made a mistake by hiring me before they were ready." It has been tremendously stressful and now I am out a steady job and wages I was expecting.
Response Yes, you can. You need to file wage claim for the misclassification. If they micromanaged your action, then you were an employee and not an Independent contractor. You can file wage claim with New Mexico Department of Workforce Solutions or U.S. Department of Labor, Wage and Hour Division:
http://www.dws.state.nm.us/Business/Resources/Wage-Claim-Procedures
http://www.dol.gov/whd/america2.htm#NewMexico
Customer: replied 1 year ago.
I expect my wages to be paid for the time I worked- but the problem is that they gave me absolutely no feedback on my performance but then "fired me" under the guise of being an independent contractor- so that they owed me no explanation. Now I am looking at a huge monetary impact on my future because I am out of work from them for no reason and I left my other job to join them as an employee, which they promised but never acted on. If i cannot find another job that will pay may as well I am looking at a very significant monetary impact on me because they were abusing me as an employee, as I see it.
Customer: replied 1 year ago.
In addition, I believe I was "fired" because I was asking questions about what my role and responsibilities were as an employee vs. an independent contractor. They "fired me" because I was aware of my rights both ways and brought into question. They were also frustrated because other employees were questioning their status. It was highly retaliatory in nature for me being aware and asking questions.
Expert:  Phillips Esq. replied 1 year ago.
I expect my wages to be paid for the time I worked- but the problem is that they gave me absolutely no feedback on my performance but then "fired me" under the guise of being an independent contractor- so that they owed me no explanation. Now I am looking at a huge monetary impact on my future because I am out of work from them for no reason and I left my other job to join them as an employee, which they promised but never acted on. If i cannot find another job that will pay may as well I am looking at a very significant monetary impact on me because they were abusing me as an employee, as I see it.
Response: As an employee at will, your employer can terminate you for any reason or for no reason at all so long as the reason for the termination is not based on any one of the prohibited grounds of race, gender, age (40 and over), nationality, ethnicity, or the like. However, if the employer states the reason for termination and the reason is false as you are alleging here, then you can sue the employer for wrongful termination, for damages. You would need the services of a local Attorney who handles employment issues to assist you with the case. You can use the following sites to find local Attorneys:
http://www.lawyers.com
http://www.justia.com
Customer: replied 1 year ago.
Okay, that makes sense. I understand "at will" employment but a few things a) they purposefully misclassified me as an independent contractor and used me as an employee b) fired me in retaliation for asking questions about my status as an employee and making other workers aware of their rights.
Expert:  Phillips Esq. replied 1 year ago.
Okay, that makes sense. I understand "at will" employment but a few things a) they purposefully misclassified me as an independent contractor and used me as an employee b) fired me in retaliation for asking questions about my status as an employee and making other workers aware of their rights.
Response: You can still file for wrongful termination.
Also, in my initial response, I suggested that you file for wage claim. When you file for wage claim, the New Mexico Department of Workforce Solutions or U.S. Department of Labor is going to investigate if you were misclassified and if so, the employer would be ordered to pay all payroll taxes that the employer was supposed to be on your behalf as an employee, but did not because you were incorrectly classified as an Independent Contractor. So, wage claim, it encompasses more than wages.
Customer: replied 1 year ago.
Thank you, ***** ***** thing- I am going to contact an attorney here in New Mexico. I have pictures of my work schedule, a time punch in/ punch out sheet and also checklists that i was supposed to use to train the other "independent contractors" with... am I going to have to PROVE that the reason they "fired me" was because I raised questions about my rights as an independent contractor vs. employee? I know that's why they got rid of me... that and because I was 20 minutes late one day... which i thought had no bearing on my performance as an IC...
Expert:  Phillips Esq. replied 1 year ago.
Thank you, ***** ***** thing- I am going to contact an attorney here in New Mexico. I have pictures of my work schedule, a time punch in/ punch out sheet and also checklists that i was supposed to use to train the other "independent contractors" with... am I going to have to PROVE that the reason they "fired me" was because I raised questions about my rights as an independent contractor vs. employee? I know that's why they got rid of me... that and because I was 20 minutes late one day... which i thought had no bearing on my performance as an IC...

Response: Yes. You have to state the reason that you believe that you were wrongfully terminated in your lawsuit. It would be wrongful if you were terminated because you questioned your rights as in Independent Contractor vs. an employee.
Customer: replied 1 year ago.
Yes, but won't they just be able to lie and say that it was for another reason that they fired me? As soon as this is investigated it will be found that at least 12 employees are being misclassified as IC. But on my end. If i seek damages against them how will the determination be made that was the true reason for firing me?
Expert:  Phillips Esq. replied 1 year ago.
Yes, but won't they just be able to lie and say that it was for another reason that they fired me?
Response 1: Anything is possible. However, I cannot tell you what they can do or not do only to say that they have a right to defend the charges against them and it would then be up to the investigator to determine who is telling the truth: you or them.
As soon as this is investigated it will be found that at least 12 employees are being misclassified as IC. But on my end. If i seek damages against them how will the determination be made that was the true reason for firing me?
Response 2: That's what the investigation is about.