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Patrick, Esq.
Patrick, Esq., Lawyer
Category: Employment Law
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Experience:  Significant experience in all areas of employment law.
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The company that I was affiliated with terminated a contract

Customer Question

The company that I was affiliated with terminated a contract I had with them based completely on things that were directly related to my disability that falls under ADA act. My question is since I have a contract and am not considered an employee by the company, do I have any actions that I can take against company? I am not sure if the company can legally consider me a contractor rather than an employee based on some of the literature I have read from Answer if you can
Submitted: 1 year ago.
Category: Employment Law
Expert:  Patrick, Esq. replied 1 year ago.

Hello and thank you for entrusting me to assist you. My name is ***** ***** I will do everything I can to answer your question.

Did you receive paystubs with deductions for taxes, social security, etc.? At the end of last year did you receive a W2 or a 1099?

I very much look forward to helping you on this matter.

Customer: replied 1 year ago.
I received a 1099, I also had to use their equipment to perform my duties, I had to return it to them at the end of contract and I had to service accounts that they wanted me to even though I did not want to service them.
Expert:  Patrick, Esq. replied 1 year ago.

Thank you. If you received a 1099 that means you have been classified as a contractor, not an employee. Assuming that classification was proper, then the ADA does not apply to you because the ADA applies only to those individuals who are properly classified as employees.

So, whether you have any recourse here will first turn on the question of whether your classification as a contractor was proper. It is a common misconception among employers that they have discretion whether to classify workers as contractors or employees. In fact, however, proper classification is entirely a function of the dynamic of the employment relationship itself and no "choice" is involved.

Generally speaking, a worker will be properly classified as an employee if the person to whom service is rendered retains significant control over the manner and means by which the work is performed. This, ultimately, is the relevant inquiry--not whether the worker "agreed" to be classified as a contractor, or whether their contract defined them as one. Factors considered in determining proper status include the following:

1. Whether the person performing services is engaged in an occupation or business distinct from that of the principal;
2. Whether or not the work is a part of the regular business of the principal or alleged employer;
3. Whether the principal or the worker supplies the instrumentalities, tools, and the place for the person doing the work;
4. The alleged employee’s investment in the equipment or materials required by his or her task or his or her employment of helpers;
5. Whether the service rendered requires a special skill;
6. The kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the principal or by a specialist without supervision;
7. The alleged employee’s opportunity for profit or loss depending on his or her managerial skill;
8. The length of time for which the services are to be performed;
9. The degree of permanence of the working relationship; and
10. The method of payment, whether by time or by the job.

See here for more information.

If you believe you can make the argument that you were misclassified, then you can argue that the ADA applies and that any recourse that might be possible under the ADA would be available to you. The first step is to file an administrative complaint with the Department of Fair Employment & Housing. The DFEH will investigate and attempt to mediate a resolution with your employer. That not forthcoming, they will either file a lawsuit on your behalf or issue you a "right to sue" letter, which will enable you to sue in civil court with the assistance of an attorney.

I hope that you find this information helpful. Please do not hesitate to let me know if you have any questions or concerns regarding the above and I will be more than happy to assist you further.

If you do not require any further assistance, please be so kind as to provide a positive rating of my service so that I may receive credit for assisting you. Very best wishes moving forward.

Expert:  Patrick, Esq. replied 1 year ago.

Was I able to answer your question? Please let me know if there is anything at all I can clarify....

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