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BusinessColumnistsCarrie Mason-Draffen

Contracted attorney may have difficulty collecting pay

DEAR CARRIE: I am writing on behalf of my daughter-in-law. She is an attorney and signed a contract to do per diem work for a local lawyer. She put in long hours, including going to court daily for both day and night cases. They agreed on the fees she would earn. But he has yet to pay her all the money he owes. When she calls to request payment, the lawyer sends a few dollars, claiming he will send more when clients pay him. After one year, he owes her more than $10,000. So she recently filed a lawsuit. But if a judgment is issued and if he is a corporation, he will be protected and she will get nothing for the time and effort. How can she collect money that is rightfully due her?-Illegal Eagle?DEAR ILLEGAL EAGLE: Unfortunately, your daughter-in-law's options are limited because she seems to be an independent contractor, not an employee.

"That makes a big difference," said attorney Alan Sklover, founding partner of Sklover, Donath & Felber, a Manhattan law firm that represents employees. "Employees have the New York State Labor Department on their side, whereas independent contractors, who are effectively in their own business, have to fend for themselves."

The mention of per-diem work is a clue that she probably isn't an employee.

"It indicates that the work your daughter did was not on a regular basis, and that she had the freedom to work for other attorneys, too," Sklover said.

But determining whether someone is an employee or an independent contractor is more complex.

"There are almost 20 different factors that the courts look to in order to decide if a person is one or the other," Sklover said. "The real difference is that an employee is under the effective control each day, all day; whereas an independent contractor decides his or her own days, times, and amount of work they will do."

So if your daughter has any doubts about her status, that issue is worth exploring.

Employees have a much easier time collecting wages owed them.

"If an employer willfully withholds wages from an employee, New York State law gives employees both an extra 25 percent as a penalty against the employer, and reimbursement of their legal fees," Sklover said. "Independent contractors are entitled to neither."

And he said, "Independent contractors, like the reader's daughter-in-law, face the same hurdles in suing people who owe them money."

Sklover recommends that your daughter-in-law proceed with her lawsuit against the attorney's public corporation, if one exists. As for collecting a judgment, he suggests she turn to a local collection agency or public marshal to "try to locate and seize assets of the errant attorney-employer, such as its bank accounts, or even furniture." But he says that "collecting is not, alas, an easy task."

He counsels against her representing herself, even though she could.

"At least she can do the work herself," Sklover said, "although it is often said that an attorney who represents himself or herself has a fool for a client."

For more on the difference between independent contractors and employees go to: www.irs.gov/businesses/small/article/0,,id=99921,00.html and www.irs.gov/businesses/small/article/0,,id=179115,00.html

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