Q: Is my son correctly classified as a 1099 worker in NY?
My son has been working as a receptionist for a nursing home for about eight months and is classified as a 1099 independent contractor. He punches in and out using a time clock, is given a work schedule, and is told when to take breaks. His employment is per diem, and he does not receive any health insurance or paid time off. He hasn't signed any specific contracts regarding this classification and hasn't yet discussed it with his employer. How should we address this situation, and does this classification seem accurate based on his circumstances?
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A:
Misclassification of employees as independent contractors is a serious problem because it deprives workers of important employment rights and benefits like minimum wage, overtime pay, unemployment insurance, workers' compensation, and retirement plans.
An independent contractor analysis can be very tricky because there are numerous multi-factor tests that may apply depending on the issue being evaluated (overtime and minimum wage, benefits, social security, and unemployment to name a few). In your son's case, you point to a number of reasons that would suggest that he is misclassified under any of the relevant tests. "He punches in and out using a time clock, is given a work schedule, and is told when to take breaks." That sounds more like a typical employee being directed by an employer, rather than a legitimate independent contractor situation.
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