DGAA bLAWg

Misclassification of Employees

Web Admin - Thursday, November 19, 2015

    misclassification of employees, Illinois employment law attorneyIndividuals who are performing work for a business entity are generally either classified as independent contractors or employees. The difference between the two classifications is important; being considered an employee entitles individuals to greater benefits than independent contractors receive. Unfortunately, whether intentionally or not, the misclassification of employees occurs, and can end up costing employees access to significant benefits. 

    Classifying Workers 

    An independent contractor provides a good or service while retaining control over how that good or service is provided or performed. Moreover, an independent contractor will often treat the entity that he or she provides the work for more like a customer or client, rather than an employer. Frequently, an independent contractor will be performing similar work for multiple entities. 

    If a person performing work is considered an independent contractor, the business entity can avoid providing the person with the benefits that employees are entitled to. Some of these benefits include workers’ compensation, overtime pay, insurance, minimum wage, and family or medical leave. By avoiding these benefits, the entity can enjoy significant cost savings, which can create a competitive advantage over similar businesses. However, this comes at the expense of the individuals the entity employs. 

    Under the Illinois Unemployment Insurance Act, a presumption of employment exists that must be rebutted by the entity in order to lawfully classify the individual performing work as an independent contractor. Specifically, an individual performing services for a business entity is considered an employee unless it is proven that:

    1. The individual is free from the entity’s control or direction over the performance of the work, both under the terms of the contract and in fact;

    2. The service provided is outside of the normal course of the business or is completely performed outside of all of the places of business of the entity; and

    3. The individual is part of an independently created trade, occupation, profession or business. 

    Under the Illinois Employee Classification Act, a construction worker is considered an independent contractor if the above test is met or if the worker is a sole proprietor or partnership. 

    Holding Employers Liable 

    The Illinois Department of Labor, as well as various other government agencies, is responsible for enforcing state laws that govern employee misclassification. Consequences for misclassifying employees as independent contractors include the assessment of interest on late or delinquent unemployment insurance trust contributions and financial penalties. An employer that does not obtain workers’ compensation insurance can be fined up to $500 for every day that it is non-compliant, with a minimum fine of $10,000. It is also possible for an individual to file a personal lawsuit against his or her employer to recover damages such as wages, back overtime pay, or other lost benefits. 

    If you believe that you have been misclassified as an independent contractor, it is important to contact an experienced Illinois employment law attorney as soon as possible. There are potentially significant benefits that you have been denied as a result of that misclassification. Our firm proudly helps individuals in communities throughout the northwest suburbs, including Crystal Lake, Schaumburg, Palatine, Des Plaines, Rolling Meadows, Deer Park, Inverness, Arlington Heights, Barrington, and Buffalo Grove. 

      Ken Apicella

      About the Author: Attorney Ken Apicella is a founding partner of DGAA focusing in the areas of personal injury, employment, insurance coverage disputes, and civil litigation. Ken earned his J.D. from DePaul University College of Law in 1999. He has been named a SuperLawyers Rising Star and a Forty Illinois Attorneys Under Forty to Watch. Ken has written and lectured for the Illinois Institute for Continuing Legal Education and regularly serves as a moderator at Northwest Suburban Bar Association's Continuing Legal Education seminars.



    Sources:

    http://www.ilga.gov/legislation/ilcs/fulltext.asp?DocName=082004050K212

    http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=2898&ChapterID=68


    Employee Misclassification and Why It Matters

    Web Admin - Monday, March 30, 2015

    employment contract, Illinois employment law lawyerThe relationship between employers and employees comes with many legal complexities, and there are times when employers can improperly curtail employees' rights, either by accident or design. One common place where this sort of issue arises is through employee misclassification, the practice of designating an employee as an independent contractor. Although the decision of which of those classes a worker falls into is one for a court to decide, many employers choose to make an improper classification in order to avoid having to provide things like overtime pay or workers' compensation insurance.

    What Misclassification Is

    There are two classes of worker for many employment law purposes: employees and independent contractors. Generally speaking, the difference between the two is the amount of control that an employer exercises over them. The more control, the more likely the court is to find that an employer/employee relationship exists. However, there are actually a variety of factors that courts look to, including:

    • - How much direction the employer gives in how to complete tasks;
    • - The type of evaluation system the worker operates under;
    • - Whether the business trains the worker;
    • - Whether the business reimburses the worker's expenses;
    • - Whether the worker can work for other employers;
    • - How the worker is paid;
    • - Whether the relationship is intended to be long-term; and
    • - Whether the worker's services are a key part of the business.

    Examples can often be helpful to understand whether someone qualifies as an employee or an independent contractor. For instance, a secretary working at an office for years probably qualifies as an employee because of the high amount of control the employer would retain, as well as the other factors. Conversely, an IT worker hired to set up the company's network would probably be an independent contractor because they are going about the work in their own way, and the job's duration is limited.

    Why It Matters

    This distinction matters because it affects the responsibility that an employer has towards the worker. Many of the legal protections afforded to workers are only given to people in an employer/employee relationship. For instance, many employers misclassify their employees in order to avoid paying overtime pay or to avoid providing workers' compensation insurance. They can also use misclassification to shift tax burdens onto the worker, by avoiding things like unemployment insurance and Social Security taxes.

    A worker's classification is a matter for courts to decide, and how an employer has elected to treat the worker is immaterial. If you believe that you have been misclassified and are losing access to benefits like overtime pay or workers' compensation benefits, contact an experienced Illinois employment lawyer today. Drost, Gilbert, Andrew & Apicella, LLC serves workers in many northwest suburban towns, such as Rolling Meadows, Schaumburg, Inverness, Deer Park, and Arlington Heights.

    Ken ApicellaAbout the Author: Attorney Ken Apicella is a founding partner of DGAA focusing in the areas of personal injury, employment, insurance coverage disputes, and civil litigation. Ken earned his J.D. from DePaul University College of Law in 1999. He has been named a SuperLawyers Rising Star and a Forty Illinois Attorneys Under Forty to Watch. Ken has written and lectured for the Illinois Institute for Continuing Legal Education and regularly serves as a moderator at Northwest Suburban Bar Association's Continuing Legal Education seminars.


    Recent Posts


    Tags

    real estate leasing Barrington Illinois estate planning lawyer Arlington Heights TBI attorney Illinois personal injury attorney capital gains tax Des Plaines pet law attorney Chicago estate planning medical malpractice compensation Inverness real estate lawyer employment attorney Chicago life insurance attorney auto accidents license unauthorized overtime Rolling Meadows employment law attorneys Arlington Heights lawyer estate planning lawyer Schaumburg real estate lawyer unfunded trust Buffalo Grove traffic lawyers denied insurance claim Illinois red light cameras medication errors startup company special needs trust manufacturing estate plan Illinois insurance disputes top life insurance claim denials changes to mortgage law real estate attorneys Kenilworth estate planning attorney Barrington drug crime attorney suspended license drug possession ObamaCare residential real estate Arlington Heights injury attorney fiduciary rule boating under the influence Crystal lake insurance dispute attorney subcontractor insurance disputes Rolling Meadows marijuana attorney traffic tickets Illinois civil litigation lawyer Illinois injury lawyer Inverness accident lawyer CAM traffic laws Illinois defective products attorney Illinois medical malpractice claim Crystal Lake insurance lawyer Chicago traffic lawyer construction accidents, personal injury, wrongful death, Arlington Heights personal injury attorneys, workers' compensation Illinois LLC creation power of attorney for healthcare dynasty trusts Barrington employment law attorney car crash Barrington employment law firm Deer Park real estate law firm Arlington Heights wills and trusts lawyer probate Illinois insurance dispute lawyers Schaumburg construction accident lawyer driving back injuries employment contract, employment law, employment at-will, Deer Park employment law attorneys, contract, digital assets Des Plaines civil attorney Arlington Heights insurance attorney liability bicycle accidents financial advisors Arlington Heights accident attorney Illinois traffic laws sexual images Illinois Transfer on Death Instrument workers compensation Schaumburg digital evidence spinal cord injury traffic violations defense Attorney Ken Apicella social media after death Illinois attorney wills Buffalo Grove corporate attorney Buffalo Grove insurance claim dispute lawyers involuntary manslaughter Rolling Meadows real estate attorney Rolling Meadows personal injury lawyer DUI attorney Des Plaines Schaumburg criminal attorney medical malpractice, missed diagnosis, delayed diagnosis, medical mistake, Deer Creek medical malpractice lawyers Palatine drug lawyer Illinois lawyer nursing home negligence Buffalo Grove traffic attorney traffic crimes Illinois boating accident lawyer vacation home fines trench injuries Deer Park accident attorney most common reasons for life insurance claim denials Palatine corporate law attorneys home inspection lawyer pedestrian accident right to work Barrington medical malpractice lawyers sexual harassment Inverness civil lawyer Rolling Meadows litigation lawyer business litigation Palatine employment attorney pedestrian injuries, pedestrian fatality Policy Cancellation Deer Park medical malpractice attorney car collision new real estate form Illinois employment law attorneys civil rights violation Illinois traffic ticket lawyer Illinois job attorney life insurance filing a medical malpractice claim probate claims process employee rights Crystal Lake employment lawyer FMLA insurance claim delay Illinois DUI attorney Illinois probate lawyer Crystal Lake medical malpractice law firm college kids expungement Illinois jet ski accident lawyer pizza emoji Mount Prospect real estate lawyer Schaumburg employment law attorneys Chicago attorney Rolling Meadows boating crash lawyer Palatine corporate attorney insurance claim denial Deer Park personal injury lawyer insurance dispute, insurance dispute lawyers, insurance claim denial, insurance claim delays, Rolling Meadows insurance dispute attorneys Inverness real estate attorney foreclosed rental property pedestrian-automobile accident criminal law Crystal Lake employment law attorney Affordable Care Act Barrington personal injury lawyer defective products lawyer minimum wage Rolling Meadows estate planning attorney employment law Barrington life insurance lawyer lapse in policy trucking accidents Illinois will lawyer Long Grove estate planning attorney Illinois rollover accident lawyers Illinois trucking safety Schaumburg drug defense lawyer Illinois Sales Representative Act natural gas explosion workers compensation benefits Schaumburg injury lawyer Schaumburg personal injury lawyer insurance agents Schaumburg civil litigation attorney car crash injuries Palatine elder law attorney Illinois insurance attorney insurance dispute attorney Illinois traffic accident lawyer probate fees contracts caregiver DGAA Schaumburg life insurance attorney Des Plaines DUI attorney texting while driving Rolling Meadows business lawyer senior citizens Illinois employment law attorney beneficiary complications employee misclassification Rolling Meadows probate lawyer hit and run accident Chicago lawyer investment property Illinois estate planning law firm Rolling Meadows insurance dispute lawyers problem employees foreclosure Schaumburg estate planning attorney IRA benefits guardianship attorney federal regulations for LLCs Crystal Lake medical malpractice lawyer Chicago trucking accident attorney insurance denial appeals Illinois criminal defense attorney ACA Illinois speeding lawyer Crystal Lake accident attorney elder abuse Schaumburg insurance lawyers Des Plaines personal injury lawyer Palatine criminal defense lawyer fatal car accidents Crystal Lake estate planning lawyer holiday statistics Arlington Heights employment attorney DUI defense Kenilworth estate planning lawyer mass shooting slip and fall Illinois Probate Act of 1975 Illinois employment lawyer Barrington attorney health insurance dispute low-ball insurance settlement Illinois business law atorneys Long Grove estate planning Buffalo Grove medical malpractice lawyers Chicago car accident lawyer Chicago will attorney, social media platforms, Illinois estate planning lawyer, estate planning attorney forming a corporation in Illinois loopholes Arlington Heights tax lawyer medical marijuana probate claims revenge porn BUI Joliet general practice lawyers Palatine employment lawyer Illinois insurance claim attorney Long Grove real estate lawyer Illinois construction accident attorney Crystal Lake employment attorney living wills Deer Park traffic accident attorney llinois Real Estate Lawyers Association Arlington Heights traffic attorney Chicago estate planning lawyer Rolling Meadows traffic law firm Barrington civil litigation attorney Des Plaines medical malpractice attorney fiduciary rule delay cell phone accidents personal injury attorney slip and fall accidents Kenilworth estate planning attorneys condo Barrington Traffic Lawyer Barrington injury attorney employee discrimination Barrington workers compensation attorney Crystal Lake business law attorneys insurance claims drugs hands free device Illinois estate planning attorney insurance disputes, Illinois insurance disputes, Illinois insurance dispute attorneys, denied insurance claims, Arlington Heights insurance dispute attorneys Des Plaines personal injury lawyers Rolling Meadows car accident lawyers Landlord Tenant Ordinance deadly crashes commercial real estate Rolling Meadows medical malpractice lawyers Palatine employment law lawyer Rolling Meadows employment attorney Buffalo Grove real estate attorney Illinois tax attorney drunk driving murder Illinois law Illinois wrongful termination lawyer Employment Discrimination Law Rolling Meadows criminal lawyer Illinois insurance claims lawyers Illinois workplace discrimination attorney Illinois real estate lawyer marijuana Des Plaines Traffic Lawyer Food and Drug Administration's Food Safety Modernization Act Crystal Lake bike accident lawyer digital media accounts, estate planning, Arlington Heights estate planning attorney, Rolling Meadows Attorney Chicago employment lawyer insurance adjusters insurance attorney FSLA digital assets, digital fiduciary, estate planning, digital content, Long Grove estate planning lawyers Rolling Meadows tax attorney Chicago insurance law firm Illinois driving without license Illinois Workers’ Compensation Commission Rolling Meadows employment law attorney rollover car crashes denial of life insurance Buffalo Grove employment lawyer installment contracts Crystal Lake traffic attorney Deer Park criminal attorney license reinstatement Illinois home inspection Palatine workers compensation lawyer Palatine civil attorney Crystal Lake pedestrian accident lawyer food poisoning Palatine probate lawyer healthcare liens civil litigation defective products personal injury, auto accident injuries, delayed injuries, serious injuries, Des Plaines personal injury attorneys Schaumburg probate attorney owner responsibility Des Plaines real estate lawyer trusts unpaid overtime Illinois pedestrian accident attorney gift taxes Schaumburg wrongful death attorney Illinois motorcycle accident lawyer murder defense Crystal Lake will lawyer Des Plaines motorcycle accident attorney privacy uninsured motorist Arlington Heights Traffic Lawyer Arlington Heights personal injury lawyer truck collisions Des Plaines tax law firm Crystal Lake civil litigation lawyer Federal Food Drug and Cosmetic Act product liability meal breaks Thanksgiving advance healthcare directive Forcible Entry medical malpractice Palatine trusts lawyer murder charges Palatine civil litigation lawyer Arlington Heights pedestrian accidents Illinois workers compensation lawyer dog bites golf accidents eluding a police officer boating DUI Des Plaines injury law firm Palatine insurance lawyer Schaumburg personal injury lawyers DUI Illinois employee rights attorney. Des Plaines insurance attorney denied insurance claims homestead rights bad faith insurance claims trustee estate tax Chicago insurance claim attorneys Palatine traffic accidents Arlington Heights wills and trusts attorney Crystal Lake car accident lawyer Home Sale Contingencies Barrington real estate lawyer loss of consortium drug crime first degree murder construction contracts Chicago biking tips blended families motorcycle accident Illinois insurance claim dispute lawyer DMV Illinois Wage Payment and Collection Act Crystal Lake tax lawyer Crystal Lake personal injury lawyer drunk driving statistics distracted driving accident victims Crystal Lake injury attorney traffic deaths small business Arlington Heights wills and trusts attorneys overtime violations Schaumburg employment attorney Buffalo Grove personal injury attorney whistleblower protections Schaumburg estate planning lawyer rent to own real estate contracts Schaumburg personal injury attorney Schaumburg elder law lawyer insurance claim denials South Barrington real estate lawyer Des Plaines personal injury attorney federal crimes Illinois corporate lawyer irrevocable trust attorney fees insurance claim dispute Detainer Actions no contest clauses pay when paid contract comparative negligence Des Plaines real estate attorney Arlington Heights real estate lawyer Des Plaines drug crimes lawyer Rolling Meadows insurance dispute lawyers, insurance dispute Inverness elder law lawyer vacation home Inverness corporate attorney Crystal Lake car accident attorney underfunded trust Illinois trusts attorney dealing with problem employees disability benefits Barrington estate planning lawyer underage DUI Illinois personal injury lawyers Deer Park motorcycle accident lawyer Inverness injury lawyer Buffalo Grove law firm Palatine traffic lawyer medical research Arlington Heights estate planning attorney Illinois medical malpractice attorney bike accident Arlington Heights trucking lawyer Chicago corporate attorney commercial leases Rolling Meadows personal injury attorney estate planning controlled substance internet Mt Prospect Attorney criminal defense consent to a search Long Grove wills and trusts attorneys insurance negligence comp time life insurance claim denial, denial of life insurance claim Palatine Attorney Deer Park employment law attorney Palatine real estate lawyer PTSD real estate attorney Des Plaines claims law firm denial of insurance claim Home Remodeling Repair Act Schaumburg corporate attorney jet ski Barrington criminal defense lawyer Illinois collections attorney real estate contract how to avoid common denials of life insurance claims Illinois real estate Illinois car accident attorney Rolling Meadows accident lawyer corporate law Illinois Smoke Detector Act TBI landlord Des Plaines accident attorney DNR Illinois insurance lawyer unpaid assessment work unions Buffalo Grove injury lawyer Illinois traffic attorneys Class A misdemeanor personal injury claims Rolling Meadows criminal attorney overtime pay Riverwoods estate planning lawyer Inverness personal injury attorney Illinois medical malpractice case income distribution deducation real estate closing real estate severance agreements Buffalo Grove life insurance attorney estate planning, digital assets, Revised Uniform Fiduciary Access to Digital Assets Act, Illinois digital assets, Illinois estate planning, employment contract Inverness DUI lawyer Barrington business law firm Self-Directed IRA Accounts real estate zoning wrongful termination, employment law, whistleblower protections, Illinois employment laws, discrimination in the workplace construction accidents Rolling Meadows Super Mario trauma after an accident employment lawyer Illinois medical malpractice lawyers anesthesia errors appealing an insurance claim Schaumburg estate attorney Des Plaines drug lawyer Crystal Lake traffic lawyer Inverness estate planning lawyer agent real estate lawyer Rolling Meadows insurance attorney drug crimes lawyer Illinois traffic attorney fault based insurance Crystal Lake pet attorney Illinois South Barrington real estate attorney Palatine construction attorney Chicago employment attorney Crystal Lake law firm car accidents taxes Illinois Human Rights Act power of attorney gift tax exemption, estate planning, estate planning strategies, Illinois estate planning, South Barrington estate planning attorneys child safety pain and suffering license revocation Arlington Heights car accident lawyer operating agreements Schaumburg Attorney Buffalo Grove personal injury lawyer Arlington Heights medical malpractice lawyer Fourth of July Illinois personal injury lawyer car accident lawyers Schaumburg medical malpractice lawyer IRELA spinal cord injuries Illinois small business life insurance claims deed transfer coronavirus job lawyers insurance dispute civil litigation attorney preventing accidents estate planning for college students reckless homicide Schaumburg criminal law attorney Jay Andrew cell phone Illinois business lawyer preventable medical errors insufficient documentation creditors Rolling Meadows life insurance claim denial attorney Do Not Resuscitate Inverness traffic law firm Rolling Meadows DUI lawyer wills and trusts traffic offenses Schaumburg traffic lawyer pregnant women traumatic brain injuries mortgage premises liability Illinois employment law Illinois employment law firm digital information Des Plaines criminal attorney Buffalo Grove probate lawyer cell phone tower data wage theft employment law, Illinois employment laws BAC Illinois mortgages criminal landlord tenant law cause-of-death exclusions Liquor Control Act Buffalo Grove criminal defense lawyer Schaumburg car accident attorney Illinois employment attorneys Illinois workplace lawyer Mount Prospect wills and trusts lawyers sole proprietorship Deer Park workers compensation lawyer Arlington Heights wills and trusts lawyers living trust benefits healthcare claims Illinois Trust Code Illinois wills and trusts attorneys Illinois pet lawyer personal injury lawyer wrongful termination modern family estate planning Crystal Lake personal injury attorney wrongful death drug crimes life insurance policy pet law POA privacy laws Deer Park DUI lawyer Inverness probate lawyer IRA trust transfer rollover accidents Illinois personal injury surgical mistakes institutional trustee swimming pools workplace sexual harassment car accident Rolling Meadows insurance lawyer marijuana crimes attorney Transfer on Death Instrument living trust Palatine estate planning lawyer rumble strips estate attorney clemency personal injury accidents Legal Info Illinois living will Fair Labor Standards Act DUI penalities in terrorem provision tax attorney license suspension Rolling Meadows corporate lawyer crossover accidents Barrington estate planning attorney Palatine law firm BAIID speeding Barrington personal injury attorney Family Medical Leave Act ken apicella Palatine punch death Illinois registered agent GM ignition switches Arlington Heights employment law attorneys Arlington Heights car crash attorneys Illinois estate planning Inverness insurance attorney workers comp boating accidents field sobriety test car accident lawyer blood alcohol content Colin H. Gilbert Illinois wills and trusts commercial leasing Arlington Heights Attorney breach of contract trucking accident lawyers texting and driving compensatory time jet ski accidents LLCs Barrington litigation attorney paid sick leave personal injury law firm insurance agent negligence Crystal Lake medical malpractice attorneys estate planning, death tax, succession plans, business estate plans, Barrington estate planning lawyers Des Plaines collections attorney employment law, meal breaks, rest breaks, hotel employees, Des Plaines employment law attorneys Long Grove estate planning attorneys Whistleblower Claims rest breaks Barrington criminal lawyer Rolling Meadows traffic attorney personal injury claim Barrington employment attorney Chicago will attorney Barrington boating accident attorney estate planning trusts Deer Park traffic lawyer icy parking lots Retaliatory Discharge automated cars bicycle dooring accidents brain injury Rolling Meadows drug defense attorney Palatine injury attorney Long Grove real estate attorney pet bites Arlington Heights personal injury attorney Illinois insurance claim dispute lawyers IRS liability claims independent contractor traffic violations living trust vs will products liability School Visitation Rights Act dram shop law car crashes Illinois bicycle safety Illinois elder law attorney underinsured motorist Colin Gilbert Rolling Meadows personal injury lawyers insurance claim dispute attorney Palatine business attorney pedestrian accidents Palatine life insurance lawyer criminal record life insurance lawyer medical malpractice claims Arlington Heights criminal lawyer probate process Exclusions insurance denials Buffalo Grove car accident lawyer caretaker rights Illinois employment laws breathalyzer test natural gas material misrepresentation hiring employees Palatine personal injury lawyer probate lawyer insurance claim Rolling Meadows Traffic Lawyer distracted driving accidents motorcycle accident lawyer employees condo association head on collisions personal injury Illinois workers compensation attorney elder law accidental death benefits traffic accidents trust payments traumatic brain injury Mount Prospect elder law attorney Crystal Lake criminal defense attorney

    Archive