Employment Law: Employee vs. Indepedent Contractor

What's the difference between an employee and an independent contractor?

Employee
Under common-law rules, anyone who performs a service for an employer is considered an employee if the employer can control what will be done and how it will be done.  This is true even if the employer gives the employee freedom of action.  What is important is that the employer has the right to control the details of how the services are performed.

Independent Contractor
Individuals such as doctors, dentists, lawyers, veterinarians, accountants, contractors, etc. who offer their services to the general public are generally considered independent contractors.  However, whether these individuals are always considered independent contractors depends on the facts of each case.  The general rule is that an individual is considered 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.

An individual is not an independent contractor if he/she performs services that can be controlled by an employer.  This applies even if the individual is given freedom of action. 

Why does this matter?
If an individual is considered an employee, then the employer must withhold federal income tax, pay Social Security and Medicare taxes, and pay unemployment tax on wages paid to an employee.  An employer does not generally have to withhold or pay any taxes on payments to independent contractors.

Consequences for Treating an Employee as an Independent Contractor
If an employer classifies an employee as an independent contractor and has no reasonable basis for doing so, the employer may be held liable for employment taxes for that worker.  Also, if an employee is misclassified as an independent contractor, the employee can file Social Security and Medicare tax forms to gain relief.

If you are victim of employment related problems, contact Ambuter Law for your free case evaluation.

Employment Law and Recording Conversations at Work

A common question that I am always asked is:

"Can I record a conversation at work?"

In Florida, the answer is usually "No."  Florida is a "two-party" or "all-party" consent state.  What this means is that all parties involved in the conversation have to give consent in order for the tape or video recording to be legal.

"But what if I want to prove discrimination?" is another common question.  Most likely you won't be able to prove it via a recording device.  However, there are some exceptions to the "two-party" or "all-party" consent rule.  For instance, many courts have ruled that there is a lower expectation of privacy in the workplace.  Courts have also ruled that conversations that take place in a common area, such as lobby, stairwell, or hallway are not deemed to be places where there is an expectation or privacy.

However, I would tread with caution before recording anything in the workplace without the consent of all parties.

If you have questions or concerns about your rights in the workplace, please contact Ambuter Law for your free case evaluation.

Employee Rights and Discrimination and/or Harassment in the Workplace

No one thinks that they are going to be the subject of harassment and/or discrimination – especially in the work place.  Unfortunately, it happens every day.  Here are a few things you need to do to ensure that you are protecting yourself.

      1)      Contact human resources in writing.  Many employees who are the subject of harassment or discrimination fear that they will be retaliated against if they contact human resources.  While this can happen in certain instances, you still need to contact human resources and make them aware of the harassment and/or discrimination.  Also, this needs to be done in writing, whether via email or a certified letter.

2)      Contact your company’s ethics' hotline (if there is one).  A lot of companies today have implemented what is called an “ethics' hotline.”  Many times, employees can call the ethics' hotline and report incidences of harassment and/or discrimination anonymously.  This is a great resource for employees to use if they fear retaliation.

3)      Keep a journal notating the harassment and/or discrimination.  While this may sound silly, this is a great way for employees to notate specific incidences of harassment and/or discrimination that occur on certain occasions.  If an employee has kept an accurate journal or log of events, it can be a great source to show the frequency and severity of the harassment and/or discrimination.  Just make sure that you are writing your entries down when you are off the clock.

If you are the subject of harassment and/or discrimination in the workplace, please contact Ambuter Law for your free case evaluation.

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