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Who is the Employer and Who is the Employee?


In employment cases, it is generally expected that the employer is the one responsible for preventing discrimination or retaliation against its employees. However, the question of who is actually the responsible employer and who is considered an employee can often be a gray area. Here are some of the issues that may arise in employment cases with regard to determining the correct parties.

Common issues regarding employer status and contractors

A common problem in determining employer status arises in cases involving construction sites, contractors and subcontractors. In most situations, the owner of the construction site controls the day-to-day activities of employees on that site, as well as their performance. However, the subcontractor is often the one who actually selects the specific employees who work at the site. Typically, in this situation, both the owners of the construction site and the subcontractor, are held responsible under a “joint employer” theory. Basically, both entities have the ability to hire, fire, or discipline these workers, and both entities supervise them or direct their work, exercising control over them.

What is the advantage of joint employer status?

An obvious benefit of this court ruling is that, if found liable, the aggrieved employee may be able to collect from both “joint” employers. As damages may include back pay, attorney fees, compensatory and punitive damages, all of which can be quite substantial, recovery can be greatly enhanced.

Understanding the difference between an independent contractor and an employee?

Some clients are also faced with the dilemma of whether they are employees or independent contractors. In many cases, the status actually matters because there are legal differences between these two designations and these differences may affect your rights. From an employer’s prospective, an independent contractor saves the company a lot of money because they are not required to withhold income taxes from an independent contractor.

How do you determine independent contractor status?

There are a few questions you can ask yourself, to help you determine whether you should be considered an employee or an independent contractor. For example, if your compensation is based on a project-by-project basis then you are likely an independent contractor. If your hours are determined by your employer and that employer provides the materials and equipment you need to perform your job duties, then you are more likely an employee. If your employer provides instructions on how to accomplish your work, as opposed to being given autonomy to complete the job as you see fit, then you are probably an employee.

Why it is important to be classified correctly

By definition, independent contractors are self-employed. This means they are not covered by employment, labor or related tax laws. When you are misclassified as an independent contractor, you are also being denied access to certain benefits and protections, including Family and Medical Leave, overtime, minimum wage, unemployment insurance and other benefits provided by that particular employer to its employees.

If you feel you have been the victim of discrimination or retaliation, or if you have any questions regarding your employment rights, please contact Michel | King , either online or by calling us at (205) 265-1880.

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