NY Department of Labor Lawyer
In recent years, the Department of Labor, UI Division, has increased its enforcement efforts and coordination efforts with other agencies to investigate small businesses. Our Award Winning Employment Lawyer has represented many business owners and helped protect their assets – feel free to call us at (800) 893-9645 for a confidential consultation. One of the key inquiries in a Department of Labor audit is whether you have misclassified any workers as independent contractors when they should have been treated as employees. We have discussed the factors that the DOL may consider in its audit and that discussion can be found here and here. It is important to note that the factors can vary by industry (especially in the performing arts field) and by the individual circumstances. Indeed, the DOL has provided the following examples of situations of where workers will be considered employees even if they don’t meet the traditional test --
1. An agent or commission driver engaged in distributing meat, vegetables, fruit or bakery products; beverages (other than milk); laundry or dry cleaning services;
2. A traveling or city salesperson who works full-time soliciting orders for merchandise for resale or supplies for use in the purchaser’s business operations. The salesperson must work in a continuing relationship with an employer and personally perform substantially all of the work. The salesperson must have no substantial investment in the facilities used in the performance of the services, except the facilities for transportation;
3. Professional musicians or persons otherwise engaged in the performing arts, who perform services as such for a television or radio station or network, a film production, a theater, hotel, restaurant, night club or similar establishment unless, by written contract, such musicians or persons are stipulated to be employees of another employer. “Engaged in the Performing Arts” means performing services in connection with the production of, or performance in, any artistic endeavor that requires artistic or technical skill or expertise; and
4. Professional models who perform modeling services for, or who consent in writing to transfer use of their name or likeness for purposes of advertising or trade to, a person or entity that dictates assignments, hours of work or performance location and that compensates them, in return for a waiver of their privacy rights, unless the services are performed under a written contract that states the model is an employee of another covered employer.
As you can see, the distinction between an independent contractor and an employee is not always an easy one to make. Each situation is fact specific. You should not rely on what another company does or simply what the worker requests. It is important to get legal counsel from an experienced employment law attorney before the worker starts performing services. An adverse determination can deadly for a business as it can lead to significant back payroll taxes (going back up to 3 years), interest, penalties and investigations by additional government agencies – this is a serious matter and should not be taken lightly. Contact our office at (800) 893-9645 to learn best practices, your legal obligations and potential exposure if you are facing an audit.