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If I think I have been misclassified as an independent contractor, what's the best way to proceed?

I am an Ohio resident, and I have worked with a company headquarted in Ohio to provide security services for natural gas wells at locations in Pennsylvania since 9/21 of 2010. As of 8/20/2011, I was contacted by this company and told my services would no longer be required. Said company has classified me, and approximately 20 other employees, all of whom perform identical work, as independent contractors.

After reviewing the criteria the IRS would use to determine a worker's employment status at the relevant section of their webpage it is my belief that said classification is inappropriate, and that I actually was an employee, and thus eligible for unemployment compensation. I have also worked more than 40 hours in 24 of the last 48 weeks, for a total of 374 hours and may therefore have some further claim against my former employer for unpaid overtime.

As I understand the law, valid classification as an independent contractor would be an absolute defense against any claim for unpaid overtime, and enable my employer to deny a claim for unemployment insurance, and thus determination of my status would seem to be the central question in the matter at this point.

Some of the facts that indicate to me that I was an employee and not a contractor are:
I was paid an hourly wage to perform my specificed duties over the course of a set 12 hour shift, and recieved a schedule showing me where and when I would go to work. This schedule was prepared every two weeks by my employer, and sent out to all workers.
My duties as an employee required no special skill or knowledge or expensive equipment. I recieved approximately one hour of training. However, my employer had very specific instructions about how they were to be performed, and gave all workers a great deal of feedback as to the on-going quality of their work and other aspects of the job, ie cleaning, location of smoking areas, call-off procedures, the necessity of wearing required safety equipment via general e-mail and notices posted at our worksites. Said communication at times threatened that non-compliant employees would be "written up" or even the termination of our employment.
I was not expected to generate business or attract clients for the company and had no stake beyond that of an ordinary employee in the profit or loss of the company paying my wages, as again, I was paid by the hour.
I wore a uniform bearing the name of the company that paid my wages. I had no independent existence as a business entity, as I had no location from which I conducted business or advertized my services. Rather, I simply drove to work, signed a timesheet, did my job as I had been instructed from the start of my shift until the end, and left when another worker relieved me to do identical work.
I had an open-ended relationship with my employer, expecting to retain my job as long as he was satisfied with my work, rather than said ending with the completion of some project.

What would be the best way to proceed? Before contacting a lawyer, should I file for unemployment in Pennsylvania, or Ohio? Should I file the IRS misclassification form? Should I file a claim for unpaid overtime? with the relevant Ohio authority, or in Pennsylvania?

Would it be a good idea if I were to go to my former employer, and explain his likely exposure and my basis for thinking so, and ask for a certain amount of money in exchange for a promise not to persue any further action against him by way of settlement, and he were to refuse, would my having done so weaken the basis for an unemployment claim or unpaid overtime?

all information is greatly appreciated.

1 answer  |  asked Aug 20, 2011 10:43 PM [EST] in Independent Contractors  |  applies to Ohio

Answers (1)

Bruce Elfvin
A lengthy inquiry, but you need to sort out what the complaints really are in terms of what will have the maximum benefit to you now. All of the the issues will turn on whether or not you are an independent contractor or not. You need to write out in detail what you did and how this relates to the the IRS determination. You should make sure to have all the information on work hours avaiable for an attorney to review.

I know you are in the Youngstown area, but you should see an employment attorney now, as every week that goes by cuts off a week of overtime on the back end. There are federal and state laws which will have to be looked at in any review.

You can select an employment lawyer at www.oelasmart.net/directory

posted by Bruce Elfvin  |  Aug 22, 2011 10:35 AM [EST]