What Steps Should I Take If I Believe I’ve Been Misclassified? 

Accurate employee classification is more than a technicality—it serves as a foundation for workers’  rights and access to critical benefits. Proper classification determines eligibility for overtime pay, healthcare coverage, workers’ compensation, and other protections. Misclassification, whether intentional or accidental, can have far-reaching consequences for employees. If you suspect you’ve been misclassified as an independent contractor instead of an employee, Miller Shah can help you understand the steps you need to take.

Step 1. Consult with an Experienced Attorney

The first step in an misclassification dispute is to consult with a qualified employment attorney, such as the team at Miller Shah. Employee misclassification cases are often complex and require a detailed assessment of your work arrangement and compliance with state and federal labor laws. A legal professional can evaluate your specific circumstances, determine whether your classification was incorrect, and chart a concrete course of action tailored to your situation. 

There are numerous benefits to involving an attorney early in the process. For instance, legal counsel can communicate directly with your employer on your behalf, assess the possibility of resolving the issue through dialogue before filing a costly lawsuit, and help you take further steps if necessary. Some instances of misclassification may also involve financial damages, which an attorney can help you understand. 

Step 2. Gather Supporting Evidence

After securing competent counsel, the best way to help your case succeed is to marshal strong, organized evidence proving misclassification. Begin by gathering as much documentation as possible that relates to the nature of your work and the relationship with your employer. Key pieces of evidence might include:

• Employment Contract or Offer Letter: These documents can outline the terms of your employment and shed light on your classification. 
• Pay Stubs and Tax Records: Records that demonstrate how you were paid, including pay stubs and 1099 forms, are essential to determine the hours you worked and compensation you may be owed. 
• Job Descriptions or Duties: Statements detailing the tasks and responsibilities of your role can demonstrate discrepancies between how you were classified and how you actually worked. 
• Emails and Communication Records: Written communications that indicate oversight, control, or direction from your employer may indicate you should be classified as an employee. 
• Reports of Company Practices: Any evidence indicating that others in similar positions are also misclassified may demonstrate a pattern of non-compliance. 

While different states employ different tests to determine whether a worker is an employee or an independent contractor, common factors include the control an employer exercises over the worker, the level of independence the worker has in decision-making, the permanency of employment, and whether the worker’s role is integral to the business. Evidence relating to these areas may help bolster your claims. 

Step 3. File a Complaint and Seek Damages

If early discussions with your employer do not resolve the matter, the next step is to file a formal complaint. Misclassified workers can file claims for back pay, unpaid overtime, lost benefits, and other damages that resulted from misclassification. Depending on the nature of your claims, you may also involve a federal agency.  For example, the Department of Labor oversees federal wage and hour laws and often investigates misclassification claims. Similarly, if taxation is a concern, you may file an IRS Form SS-8 with the Internal Revenue Service to request a determination of your employment status for federal tax purposes. 

Filing a lawsuit may prompt an employer to reconsider negotiation, lead to mediation or arbitration, or result in a trial. An attorney will help you understand which avenues are most relevant to your circumstances and represent you throughout the process. 

Contact Miller Shah for Guidance

Employee misclassification is a serious issue that can deprive workers of the earnings and protections to which they are rightfully entitled. At Miller Shah, we understand the challenges and uncertainties that these situations bring. Our experienced legal team works tirelessly to represent misclassified employees and hold employers accountable. If you suspect you’ve been misclassified, call us for a consultation.