Employment Law Questions? Ask an Employment Lawyer.
Thank you for the information and your question. This issue is actually one of the more fact specific complex issues in employment/tax law. Only the IRS and the State can determine whether your employer is correctly categorizing you as an independent contractor. There are various factors that the State and the IRS (which defines and makes determinations that the State DOL's follow) look at in deciding. In general the issues have to do with physical, managerial and economic control over the worker's actions. You can see a much more detailed discussion of this issue and find a link to the form (SS-8) that you can fill out to have the IRS review the issue, here: https://www.irs.gov/businesses/small-businesses-self-employed/independent-contractor-self-employed-or-employee
Also, if you believe that you are not being paid according to State or Federal wage laws (other than the tax issue) you can file a wage complaint with the State. As mentioned, the State follows the definition and analysis that IRS does in determining who is an employee and who is an IC. There can be times when someone uses the Company's equipment and still be an IC, but that is one piece of the puzzle.
Please feel free to ask for clarification after you have read the guidance at the IRS link. If none is needed, then if you could take a moment to leave a positive rating in the ratings box above, I will receive credit for assisting you today. Thank you.
Either one of you can request the opinion. If an employer doesn't think they are wrong, they generally won't ask for the opinion, since it will cost them more money in taxes, etc. If you were fired for asserting your rights under the law, that would be unlawful and you could file suit for wrongful termination. You are right that the Company might be upset, but unfortunately, if you want to resolve this, the SS-8 and a wage claim would be the way to do it.
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