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What Is an “Employee” in Employee Discrimination Cases?

Whether a person is an “employee” is a frequent threshold issue in both state and federal employment discrimination and harassment cases. As the use of independent contractors becomes more prevalent in our economy, this question has become more common — and more difficult to answer.

While the law is clear that employment discrimination laws do not extend to independent contractors, partners and other nonemployees, the line between employee and independent contractor is often blurred. The Equal Employment Opportunity Commission (EEOC), which administers federal employment discrimination laws, uses a multi-factor test for drawing the distinction:

  • Does the employer control when, where and how the worker does the job?
  • Does the work require a high level of expertise?
  • Does the employer provide tools and other equipment?
  • Is the work done on the employer’s premises?
  • Is there a consistent relationship between the employer and worker?
  • Can the employer assign the worker additional work?
  • Does the employer set the schedule for work?
  • Is payment for time or by piece rate?
  • Does the worker hire his/her own assistants?
  • Is the worker performing work that is part of the employer’s regular business?
  • Is the employer a business?
  • Does the worker maintain his/her own distinct business?
  • Does the employer provide benefits?
  • Does the employer consider the worker an employee for tax purposes?
  • Does the employer have the right to dismiss the worker?
  • What type of relationship did the employer and worker think they had?

With so many factors to consider, it is easy to see that it is a highly subjective determination. However, it is important to note that just because the company you work for says you are an independent contractor does not necessarily mean a court or other administrative body would agree. A New Jersey employment law attorney can help you consider these factors and determine your actual legal status.

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Neil H. Deutsch
Senior Partner

About Neil H. Deutsch has been practicing law for over 35 years and is known as a skilled negotiator in employment and discrimination law. He believes in a bottom-line approach of risk analysis and cost effectiveness for his clients. "Case evaluation is something we take seriously," says Mr. Deutsch who seeks top net dollar for…

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Bruce L. Atkins
Senior Partner

About Bruce L. Atkins is regarded as one of New Jersey's premiere practitioners of employment and civil litigation. Mr. Atkins has also been included in the Thomson Reuters list of New Jersey Super Lawyers* in Employment Litigation since 2005. Mr. Atkins believes employees have rights that should be aggressively pursued when an employer has wrongfully dealt…

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Adam J. Kleinfeldt
Partner

About Adam J. Kleinfeldt joined Deutsch Atkins, P.C. in March of 2015.  He primarily represents individuals in employment litigations such as discrimination, retaliation, and whistle blowing matters.  He has extensive experience in all phases of the litigation process. Adam has obtained significant results for some of his clients, including a $525,000 jury verdict in a…

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Robert J. Pantina
Attorney

About Robert J. Pantina joined the firm in 2018. Mr. Pantina received his B.A. from Rider University in 2008. He received his J.D. from the Elisabeth Haub School of Law at Pace University in 2017. While in law school, Mr. Pantina interned for the Hon. Bonnie J. Mizdol, Assignment Judge of the Superior Court of…

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Diane Englander Peyser
Attorney

About Diane Englander Peyser joined Deutsch Atkins, PC in September 2018 where she represents employees in wrongful termination, retaliation, harassment, and discrimination matters. Prior to joining Deutsch Atkins, PC, Diane represented clients in all aspects of employment law on behalf of employees involving unemployment appeals, claims of sexual harassment, LGBT discrimination, disability discrimination, FMLA, New…

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