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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.

Neil  H.  Deutsch Attorney Photo
Neil H. Deutsch

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 his…

Bruce  L.  Atkins Attorney Photo
Bruce L. Atkins
Senior Partner

Bruce L. Atkins is the Senior Managing Partner at Deutsch Atkins & Kleinfeldt P.C., a prominent plaintiff employment law firm in the tri-state area. Mr. Atkins believes employees’ rights should be aggressively pursued when they’ve been wrongfully dealt with by their employers. He brings this philosophy to his practice when considering each case and its…

Adam  J.  Kleinfeldt Attorney Photo
Adam J. Kleinfeldt

Adam J. Kleinfeldt joined Deutsch Atkins & Kleinfeldt, P.C. in March of 2015.  He primarily represents individuals in employment litigation 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 his clients, including a $525,000 jury verdict in a sexual…

Debra M. McGarvey Attorney Photo
Debra M. McGarvey

Debra M. McGarvey joined Deutsch Atkins & Kleinfeldt, P.C. in December 2019. She has extensive experience defending employees and employers in state and federal court in employment litigation matters. She has represented clients on various issues arising out of the New Jersey Law Against Discrimination (NJLAD), the New Jersey Conscientious Employee Protection Act (CEPA), the…

Carly Skarbnik Meredith Attorney Photo
Carly Skarbnik Meredith

Carly Skarbnik Meredith, Esq. is a Partner at the firm. Carly has focused her career exclusively in the field of employment law. She has a plethora of experience representing both employees and employers with their employment issues, needs, and concerns. She believes representing both employees and employers has made her an extremely well-rounded client advocate.…


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