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'Contractor' not so independent; may be eligible for unemployment

On the issue of whether a worker is

On the issue of whether a worker is an employee or an independent contractor, there are regulations that define both, experts say. This is a New York State Labor Department office on March 6, 2015 in Manhattan. Credit: Getty Images / Spencer Platt

DEAR CARRIE: I have worked part time at a printing company for about 20 years. I was a regular hourly worker until about eight years ago, when the owner announced that everyone would become an independent contractor. Despite that, I still have to punch in and out, and I continue to get paid-time off, including two weeks of vacation and five sick days. Over the years, the company's sales have slowed, and sometimes I wouldn't get paid every week. A few years ago, the company was as many as six weeks behind on paying me. In January the problem started again. After two weeks of getting no paychecks, I had enough and told the company I wouldn't work until I got paid. The owner finally paid me but said he wouldn't call me back to work until things picked up. It is now June, and I am still not working. Am I eligible for unemployment benefits, and, if so, did I wait too long to apply? Or am I ineligible because I am an independent contractor? -- Benefits Status

DEAR BENEFITS: The key question regarding your eligibility for benefits is whether you are an employee or the opposite -- an independent contractor.

"Qualification for unemployment benefits depends on whether there is a true employer-employee relationship," said Sheree Donath, a partner at the law firm Cory J. Rosenbaum in Uniondale. "An independent contractor does not qualify to receive unemployment benefits."

The facts you have provided lean toward an employer-employee relationship.

Regulations that determine whether someone is an independent contractor look at such things as how much supervision, direction and control a company exercises regarding the person and whether that individual receives fringe benefits, Donath said. Those fringe benefits include the paid-time off you mentioned.

True independent contractors are in business for themselves, Donath said. They may have their own place of business; carry their own business cards; set or negotiate their own pay rate; offer services to other businesses, and are free to refuse work offers and may choose to hire help.

"You did not provide any facts to support that you were truly an independent contractor," she said.

What's more, a misclassification by your employer wouldn't disqualify you from unemployment benefits.

Employees "may still be eligible for unemployment benefits if they are classified as an independent contractor," Donath said.

Though you are probably an employee, you'll have to deal with whether you in effect resigned when you refused to return to work until you were paid. Generally, people who qualify for unemployment benefits have lost a job through no fault of their own.

But Donath said you may have records that show you didn't quit.

"If you have emails explaining the reason you stopped working in January and that you did not quit, especially if the decision for you not to come into the office was a directive from the company," Donath said, "you should provide these with your application."

If you do not have such emails, perhaps some other records or history of communications between yourself and your employer may help establish that you didn't quit, she said.

Here's the bottom line: She suggests that you file for unemployment benefits right away.

"You should explain to the unemployment office," she said, "that your employment has been effectively terminated as there is no work for you to perform and that your employer has refused to provide you with hours."

Go to for more distinctions between employees and independent contractors.

Call Carrie Mason-Draffen with workplace questions at 631-843-2791, or email her at carrie.mason-draffen@ Your name and number won't be published. Not all questions can be answered; some may be edited for length and clarity.


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