Employment Law

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I have a question as to whether I am an employee or

Customer Question
I have a question...

I have a question as to whether I am an employee or contractor right now, I am a "contractor" but feel like an employee because I am using their phone lines and my email is monitored by the employer.

Lawyer's Assistant: Because employment law varies from place to place, can you tell me what state this is in?

The place I "work" for is in arizona, but I telecommute in califonria

Lawyer's Assistant: Is the employment agreement "at will," union, full time or part time?

At will and full time

Lawyer's Assistant: Anything else you want the lawyer to know before I connect you?

Yes, that i am told how to do the job but then will be told that I know what I am doing. it's confusing and fee; that if I am under their direction, I should be and employee

Submitted: 4 months ago.Category: Employment Law
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Answered in 1 minute by:
12/18/2017
Employment Lawyer: Dwayne B., Lawyer replied 4 months ago
Dwayne B.
Dwayne B., Lawyer
Category: Employment Law
Satisfied Customers: 34,389
Experience: Employment Law Expert
Verified

Hello and thank you for contacting us. This is Dwayne B. and I’m an expert here and looking forward to assisting you today.

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Employment Lawyer: Dwayne B., Lawyer replied 4 months ago

Please allow me several minutes to read your facts and type my response both initially and when you add a follow up question or add facts. Please don't ask "are you there", "where is my answer", etc., since when you post it can erase what I am working on. If we are having a conversation unless I tell you I am going offline, I will be here but I may be doing research.

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Customer reply replied 4 months ago
Thank you, ***** ***** will await your reply.
Employment Lawyer: Dwayne B., Lawyer replied 4 months ago

Neither of the two things you mention will determine whether you are an employee or a contractor.

Generally, the difference is determined by the amount of direction that the "employer" provides in the day to day operation of your job.

The IRS uses the following definition:

People such as doctors, dentists, veterinarians, lawyers, accountants, contractors, subcontractors, public stenographers, or auctioneers who are in an independent trade, business, or profession in which they offer their services to the general public are generally independent contractors. However, whether these people are independent contractors or employees depends on the facts in each case. The general rule is that an individual is an independent contractor if the payer has the right to control or direct only the result of the work and not what will be done and how it will be done. The earnings of a person who is working as an independent contractor are subject to Self-Employment Tax.

If you are an independent contractor, you are self-employed. To find out what your tax obligations are, visit the Self-Employed Tax Center.

You are not an independent contractor if you perform services that can be controlled by an employer (what will be done and how it will be done). This applies even if you are given freedom of action. What matters is that the employer has the legal right to control the details of how the services are performed.

If an employer-employee relationship exists (regardless of what the relationship is called), you are not an independent contractor and your earnings are generally not subject to Self-Employment Tax.

However, your earnings as an employee may be subject to FICA (Social Security tax and Medicare) and income tax withholding.

In addition, the IRS refers you to their webpage at https://www.irs.gov/businesses/small-businesses-self-employed/independent-contractor-self-employed-or-employee

Every situation is unique. A person at one company with a certain job title may be an employee but a person with another company with the same job title may be an independent contractor. You have to go through the concepts listed above and on that web page to know which you are.

Also, the amount of control an employer asserts will affect the determination. The more control, the more the chance you will be found to be an employee if the IRS ever looks at the issue.

If your question has been answered then I'd offer my best wishes to you and ask that you please not forget to leave a 5 Star Positive Rating so I receive credit for my work. Also please consider clicking "BONUS" as a nice way of saying "thanks" for a job well done, although this is neither required nor expected. Of course, please feel free to ask any follow-up questions in this thread. I want to be sure all of your questions are answered.

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Customer reply replied 4 months ago
What about the fact that I've been told not to use my cell phone but a telephone that they provided.
Employment Lawyer: Dwayne B., Lawyer replied 4 months ago

I've never seen that be an issue either. Many companies want all work done through their phone lines so they have the metrics on performance, etc. I don't know of any judges that would think the use of a company phone would make a difference one way or another.

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DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

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