Mason-Draffen, a business reporter, writes a column about workplace issues.
DEAR CARRIE: I am a member of the New York State School Music Association, or NYSSMA, which is an organization dedicated to advancing music education in school systems across the state. Every spring, NYSSMA sponsors evaluation festivals during which students perform and then receive ratings and written comments about their musical proficiency. I am one of the many judges for the various festivals. NYSSMA conducts the judges’ training, formulates the scheduling, determines how the performances are scored, and sets the hourly pay rate. Yet it reminds us at the beginning of every season that we are independent contractors. How can this be? — Sour Note
DEAR SOUR: Based on the information you provided, it’s possible you are being misclassified as an independent contractor, said employment lawyer Sheree Donath of Donath Law in Uniondale.
A lot is at stake in classifying workers. Employees, unlike independent contractors, may qualify for their employers’ health benefits, paid time off and pension contributions, as well as state unemployment benefits should they lose their jobs, Donath said. For employers, hiring independent contractors means they forgo all those expenses and more.
“Many organizations like to hire workers as independent contractors rather than employees to avoid making payment of benefits and taxes,” she said. “For this reason, many workers are misclassified as independent contractors.”
Employers can’t just declare someone an independent contractor. By law, many criteria must be met. And at least three government agencies have guidelines for determining an employee’s status, and they all look at the issue of control.
The New York State Department of Labor looks at whether the employer controls such things as: the work to be performed, the rate of pay and the hours of work. The department also looks at who supervises the independent contractor and whether the company requires the contractor’s exclusive service.
True independent contractors control their working environment, Donath said. And they are free to work for several businesses. They can accept or reject certain projects and may have their own business.
The U.S. Department of Labor uses determining factors that include: whether the work is an integral part of the employer’s business; whether the employer controls the work; whether the independent contractors’ managerial skills affect their bottom line; whether the work performed requires special skill and initiative, and whether the relationship between the worker and the employer is indefinite.
The IRS guidelines look at the relationship of the employer and independent contractor to determine such things as behavioral and financial controls and the nature of the relationship.
With the behavioral factor, Donath said, the key question is: Does the company control or have the right to control what the worker does and how that person does his or her job? For the financial element the agency looks at whether the business aspects of the independent contractor’s job are controlled by the employer, she said. These include things like how worker is paid, whether expenses are reimbursed and who provides the tools and supplies. Lastly, the federal agency looks at broader aspects of the relationship such as whether a contract is involved and whether employee-type benefits are offered.
So you need to answer some key questions about your work arrangement to determine your true status, Donath said. For example, are you required to work at every festival or can you choose which festivals to judge? Are the supplies provided for you or do you provide your own? Do you receive any benefits from NYSSMA? Can you decide what training to attend? And are you able to promote your own business while judging at the festival?
“I suggest that you consult with an experienced attorney to determine if you are being classified improperly and to find out your rights and options,” she said.