Washington -Ind.Contractor

[Rangeman]

Is it company A or company B or both that refers to you as an independent contractor?

[DAW]

Look at the information on the DOL webpage I referenced but "Company B" (aka your employer) is either lying to you or is seriously confused. There is a 99.999% chance that you are their employee. Everything you need to know about employees v. IC is on that webpage.

Just to be clear however, so far you have said nothing that indicates that there are any legal problems with the benefit handling. (Not that there could not be problems, just that what you have said so far does not indicate this).

[hilly12]

To clarify, Company A hired Company B (the, for lack of a better word, "temp agency"). Company B is the one who issues me a paycheck and calls me an "independent contractor". Company B also takes all applicable taxes and so forth out of my paycheck.

[Rangeman]

Can you define who you are refering to when you say "they"... is it the company that is paying your paycheck or is it the company in whose physical presence you are working at?

[hilly12]

I don't think my employer is a "complete idiot" (though at times I might!). I just think they're trying to take advantage of a very confusing issue. But, they will say I am an "independent contractor" until they are blue in the face.

[DAW]

It is very unlikely that you are legally an independent contractor (IC). If you were, you would not have an employer at all. You would have customers. You would put whatever you wanted on your invoice because that is what "independent" contractors do. I can give you a pointer to the federal rules on worker classification, but nothing you have said sounds even a little bit like an IC. Saying something does not make it so.
http://www.dol.gov/dol/allcfr/ESA/Ti...CFR778.105.htm

Assuming that you are an employee, then the people who actually pay you is your employer. The place where you are working is their client, not your employer. There is a very, very, very small possibility of a co-employment or other highly technical legal exception, but that is far beyond the ability of a free internet board to get advised on. It is also legally unlikely.

Regarding benefits, employers are not required to offer benefits at all. Employers are generally allowed to create classes of employees who get different types of benefits, including no benefits at all. There are of course exceptions. If for example an employer gave medical insurance to men only, that would be a violation of a federal law called Title VII. However unless the employer is a complete idiot (which sometimes happens), it is very easy to legally create different benefit structures for different employees. Of course your employer claiming that you are IC is a vote for the "employer is a complete idiot".

[Pattymd]

Your "employer" could tell you you're blue. Doesn't make it legally correct.

Taxes are NOT withheld from independent contractors (with very limited exceptions) because payments to ICs are not subject to withholding at source.

Let's look at the two primary factors you mentioned:

1. Taxes are being withheld (I'm assuming this includes FICA/Medicare taxes). FICA/Medicare taxes are NOT withheld from ICs.
2. You're getting some partial benefits, if I understood you correctly. Eligibility for benefits is an indication of employee status. ICs are not eligible for company benefits.

The agency is your employer. They set the rules as to work hours, necessary overtime approvals, etc. It's perfectly legal for the office staff to get paid holidays, for example, and the employees working on assignment to a client to NOT get paid holidays.

ElleMD and I are not in conflict over this.

[hilly12]

So, I'm confused then. Pattymd says "Whatever benefits that employer offers to their similarly situated employees, they must offer to you. " But ElleMD says "Who gets what benefits is still up to the employer. "

And yet, the one clear thing I do know is that my employer tells me I am an independent contracter, NOT an employee.

I'm very confused as to what exactly are my rights.

[ElleMD]

Who gets what benefits is still up to the employer. Not every employee is entitled to the same benefits.

[Pattymd]

No, I'm not saying that exactly. For benefits purposes, whoever issues your paycheck is your employer. Whatever benefits that employer offers to their similarly situated employees, they must offer to you. It is not illegal, nor unusual, for different groups of employees of a company to have different benefit eligibility.

[hilly12]

So, I do not get the same benefits as the person who cuts my check. She will get tomorrow and Christmas Day off as a "paid holiday". I do not. I don not get paid for those days because, they say they consider me an "independent contractor." Neither the company who I do the work for nor do the agency claim me as an "employee." In Washington State, this can be complicated because of a court case that happened in the 90s....I'm just wondering where my rights lie nowadays.

[ElleMD]

No, you would get the benefits available to the company who cuts your paycheck, not the one where you perform the work. You are still not their employee.

[hilly12]

OK, so the agency calls us "independent contractors" while the agency also has its own roster of employees. If you're saying that because the agency takes taxes and considers us "employees" am I right to ask for the same benefits as the people who work there and the agency actually considers "employees." Those who are considered "employees" get full health coverage, vacation times that grows the longer you've been with the company, paid maternity leave, etc. When I ask for the same benefits, I am told that's not possible since I asm a contractor.

[Pattymd]

Since taxes are being withheld from your paychecks, you get (some) benefits, the agency is treating you as an employee and they are right to do so. And as such, they have to right to control your work, including hours worked and billable hours.

[hilly12]

I should also mention that previously, if it took 30 hours in a week to finish a project, I would bill 3o hours. If it took 43 hours, I would bill that. Now, I'm being told that I must bill 40 hours every week regardless.