– John R.
Employers may improperly label workers as “independent contractors” in order to avoid the greater costs associated with classifying workers as “employees.” Similarly, employers may misclassify employees as “exempt” in order to avoid paying overtime wages under the federal Fair Labor Standards Act and the Illinois Minimum Wage Act.
Federal and Illinois law provide benefits and protections to “employees” that do not apply to independent contractors. For example, employees are entitled to minimum wages and overtime compensation, while independent contractors performing similar work may not.
If your employer fails to classify you as an employee, and you have been denied the benefits and protections provided to employees under the law, consult an employee misclassification attorney at Drost, Gilbert, Andrew, & Apicella right away.
Have you been improperly classified in your employment? Employee classification can be a very complex matter. Even if your employment contract labels you an independent contractor, the law may still consider you an employee. In fact, Illinois courts have ruled that the labels used in your contract and your employer’s decision to file a 1099 instead of a W-2 form are irrelevant in deciding the ultimate issue of proper worker classification.
If your employment relationship has been improperly classified, you will need a skilled lawyer to ensure that you are properly classified and that you receive the benefits and protections that you are due.
The law creates a rebuttable presumption that workers should be classified as employees unless the employer can meet applicable legal standards to prove that the worker is an independent contractor. Misclassification can be difficult to determine because there is no single standard of what constitutes an employee relationship that applies across government agencies. The Illinois Unemployment Insurance Act applies the relatively straightforward “ABC” test:
– Is the worker free from control or direction over the performance of his services both under the employment contract and in fact;
– Are the services performed either outside the usual areas or place of business of the employer’s company; and
– Is the worker engaged in an independently established trade, occupation, profession, or business?
Under the Illinois Employee Classification Act which focuses on misclassification in the construction industry, a worker is properly considered an independent contractor only if the ABC test is satisfied or if the worker is a sole proprietor or partnership. Other relevant factors that courts and government agencies will consider when deciding issues of employee classification include:
– Whether the worker’s occupation is distinct from that of the employer
– The location of the work
– The permanency of the employment relationship between the worker and employer
– Whether the worker is paid by the hour or by the job
Various government agencies, including the Illinois Department of Labor, are responsible for enforcing the various state laws that related to employment classification. In addition, misclassified employees themselves may sue their employers for lost wages and benefits and for compensatory and liquidated damages.
If your employer has misclassified you, it is important that you consult with a lawyer right away. Contact Drost, Gilbert, Andrew & Apicella today to speak to an experienced employee misclassification attorney. Your DGGA lawyer will fight to recover any damages, unpaid benefits, and wages that are due to you. We have offices in Chicago and Cook County, and we serve clients throughout the greater Chicagoland area including Arlington Heights, Rolling Meadows, Palatine, Des Plaines, Schaumburg, and Wheeling.
©2013 DGAA Law, LLC