Independent Contractor Misclassification

Law Offices of Ayala & Williams

The right to receive overtime wages at time and a half your regular rate of pay, along with many other workplace rights and protections, like workers' compensation insurance coverage and access to unemployment benefits, are reserved for employees. Independent contractors do not enjoy these protections, because they are considered to be self employed, dependent only on themselves and fully in control of the terms and conditions under which they work. Low road employers misclassify their workers as independent contractors to deprive them of the rights the law provides them as employees, and circumvent employer costs and obligations.

Whether somebody is an employee or a true independent contractor is a legal question governed by one of two multi-factor tests in Illinois. Which test applies to you depends on the industry you work in and the right you are seeking to enforce. If you have experienced any of the scenarios described below, you may be a victim of misclassification. Contact us to explore what monetary and injunctive remedies may be available to you.

MISCLASSIFICATION SCHEMES IN CONSTRUCTION INDUSTRY

Employees working in construction are particularly well protected from misclassification in Illinois thanks to the Illinois Employee Classification Act and organized labor's advocacy for this legislation. This act renders it very difficult for employers in the construction industry to misclassify their employees as independent contractors. The Act also guards against employers in the construction industry circumventing their duties to their workers by using sham entities under their control to hire the workers they rely on.

Do you work in construction, but you are not paid time and half your regular rate for all time worked in excess of 40 hours per week?

Do you get paid the same day rate regardless of whether you work more than 40 hours a week or not?

Are you employed performing construction work, yet you are treated as a 1099 worker even though you do not own your own business?

If you own your own business, and you work in construction, do you work almost exclusively for one company, yet you are treated as an independent contractor?

MISCLASSIFICATION SCHEMES IN THE TEMPORARY STAFFING INDUSTRY

Some temporary staffing agencies are posing as gig platforms that merely help to connect you with a job, even though that job involves you working side by side other employees of the company you are assigned to, and you are supervised by an employee of said company. This leaves employees in limbo with both the company they are assigned to and the staffing agency that assigned them treating them as independent contractors.

Do you find contract work through a temporary staffing agency posing as a gig platform?

Does the "gig staffing agency" assign you to standard light industrial jobs like manufacturing, packaging, or warehousing, were you work side by side other client company employees?

Did you receive an IRS form 1099?

MISCLASSIFICATION SCHEMES IN TRANSPORTATION INDUSTRY

Courier delivery services and trucking companies often misclassify their employees as independent contractors merely because the employees provide their own vehicle to perform the services, yet remain under close control from the employer. The fact that workers provide their own car to provide services is not dispositive of the worker's status as an employee or an independent contractor, or their right to receive overtime pay, and be free from unlawful deductions from their wages.

Do you work as a delivery driver classified as a 1099 worker even though your alleged employer sets your routes or schedules and controls your wages?

Do you lease your truck or other delivery vehicle from your alleged employer?

Do you work exclusively or nearly exclusively for your alleged employer?

Does your employer make deductions from your wages, including for occupational insurance, equipment use?

If you have experienced any of these scenarios, it is possible your rights have been violated and are still being violated. To explore what monetary and injunctive remedies are available to you, contact us.