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Am I really an independent contractor?


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#1 shelob

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Posted 20 November 2012 - 02:08 PM

I was asked to return to my former job, but this time I was taken on board--fully knowledgeable and with no withholdings or benefits, but with the freedom to work my schedule around a daytime class--through a reputable staffing agency. My workplace consists of several units, each managed by three personnel. My unit requires special skills: bilingual proficiency, and cross-cultural skill, which was why I was asked to come back.

My client basically treats me like all its other employees, aside from the factors I mentioned above. I receive supervision and performance reviews along with all the company's employees. I have also at times been denied a day off that I requested due to agency needs.

Recently, the agency decided to reorganize the units. They moved two employees who were fighting and gave me the other woman's job, and gave my job to someone else. The jobs are similar, but the skill set involved is different, and the workload from her job is almost double--essentially requiring me to be in two places at once to complete the work. I've complained all the way up the chain and was essentially told that I have no other choice; do it or quit.

If I am working through a staffing agency, does that still make me a contractor? At this point I have no control over my work environment or my job. I'm totally integrated into their workforce, and the only difference between me and everyone else is that I don't have health insurance and my paycheck comes through a third party. Am I still a contractor, or would the IRS look at it differently if I file a form S-8?

#2 Fallen

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Posted 20 November 2012 - 02:27 PM

From the description, you're just a regular employee of this "staffing agency", and I trust that THEY are doing "withholding". If not, that's a problem.

"I receive supervision and performance reviews along with all the company's employees."

While I can see you receiving supervision like anyone else, unless they're just passing along this "performance review" to the staffing agency/your employer, that's a little odd.

"I have also at times been denied a day off that I requested due to agency needs."

Nothing at all weird about that.

"I've complained all the way up the chain and was essentially told that I have no other choice; do it or quit."

Nothing remarkable about this.

"If I am working through a staffing agency, does that still make me a contractor?"

You are a contractor as far as the now-client-former employer is concerned, yes. You're an employee of this staffing agency, and your former employer is their client.

"Am I still a contractor, or would the IRS look at it differently if I file a form S-8?"

I can tell you that if you were being paid by the former employer (vs. them paying the staffing agency), the IRS wouldn't consider you a contractor.

I'd just tell the client-former employer that this arrangement isn't working for you (it's unclear why you agreed to it in the first place), but I'd only do that when I was willing to quit and stay quit (unless former employer offered to re-hire you under terms you found acceptable).

I'll echo PG's advisory "warning" with a twist: (Many) legal issues are complicated. Explanations and comments here might not fully identify or explain the ramifications of your particular problem. I do not give legal advice as such (and such is impermissible here at any rate). Comments are based on personal knowledge and experience and legal info gleaned over a quarter century, and every state has differing laws on and avenues to address most topics.  If you need legal advice, you need to consult (and pay) a professional so that you may have someone to hold accountable.  Acting on personal and informational advice from a stranger on the internet is a bad idea -- at least not without your own thorough due dilience/research and confirmation as it applies to your situation.  :)


#3 Guest_FindLaw_Amir_*

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Posted 20 November 2012 - 02:28 PM

To learn more about this subject matter, you may wish to visit the Employment Law Center and read Contractor or Employee as a good resource.

#4 Tax_Counsel

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Posted 21 November 2012 - 11:15 AM

I can tell you that if you were being paid by the former employer (vs. them paying the staffing agency), the IRS wouldn't consider you a contractor.


As a tax lawyer with experience in employee determinations for tax purposes, I can tell you that there is not enough information here to say with any certainty what decision the IRS or the courts would make on the issue of whether the OP is an employee.

Shelob, I suggest the you start by reading IRS publication 15-A, which discusses the factors that are used in making these determinations. If you still have questions about whether you are properly classified as an independent contractor, then feel free to post back here or consult a tax attorney in your state for help.




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