Written by Sattiraju Law Firm on December 23, 2019
In today’s “gig economy,” many people work as independent contractors, and they have no right to unemployment insurance, workers’ compensation benefits, or overtime pay. They also must pay all their Social Security taxes, which is twice what employed workers pay.
Writer misclassification is a real and continuing problem in New Jersey, just as it is around the country. To cut corners, employers increasingly are labeling workers as ‘independent contractors” whether that is the truth or not. As a result, many workers lose out on important rights, like those mentioned above.
If you believe you are being misclassified, contact a New Jersey employment lawyer today.
How Classification is Determined
There is no bright line between an employee and an independent contractor, and simply labeling a person as an independent contractor in a contract is not by itself sufficient proof. Different tests are used, depending on the circumstances. In New Jersey, workers are presumed to be employees unless they satisfy the ABC test, and a recent state bill codifies this test into law.
Under the ABC test, a worker is considered an employee unless the following are true:
- The worker is free from the employer’s control or direction over how they perform services
- The worker provides services outside the usual course of the business or the service is provided at a location off-site
- The worker is normally engaged in an independent trade, profession, occupation, or business
A writer should analyze their employment under this test. If an employer sets strict work hours and requires that you be on-site to perform your writing job, then you might be misclassified as an independent contractor. This means you could have rights to overtime or other pay.
A Stricter ABC Test
New Jersey’s proposed bill would be even stricter than the ABC test as explained above. In particular, the bill would eliminate the ability of an employer to satisfy the second prong by showing that the service is provided away from all of the places of the business. Instead, the only way to satisfy “B” is to show that the service is outside the core services offered by the employer. This and other changes could make it much harder for an employer to satisfy the ABC test, which would make many more people employees.
How Writers Are Affected
Many writers perform most of their work for a single content marketing firm, publisher, or magazine, which makes them look like employees. However, it is very easy to classify writers as independent contractors. A person can write almost anywhere, so an employer can have them work off-site and set their own hours, thus easily satisfying the ABC test.
Some writers oppose the changes in the law. They believe that if they are classified as employees, it will be much harder to find work. Of course, employers also could have an incentive to actually hire more part-time and full-time employees to write for them, which means more freelancers will now be salaried.
Has Freelance Writer Classification Cost You Money & Benefits?
Sattiraju Law has brought several important misclassification cases, and we are available to discuss your options with you. We also work with employers to make sure they closely follow state and federal law.
Contact us today to schedule a confidential consultation with a member of our team.