Classification Confusion

[twhite]

My question involves independent contractors in the state of: NY, NJ, and FL


This is a little confusing for me, since there are different laws for each state.

I live in New York.
I work in New Jersey.
I am employed by an agency in Florida.

So, real quick... I was hired as a 'temp' just under one year ago in an IT position. Contracted by the agency in Florida to work for the company in New Jersey - the agency did not FIND me, the NJ company did and then hired me through them. (Not sure if that matters at all...)

I get paid $18 an hour. I'm expected to work 48 hours a week, (4x12) no overtime compensation. I often am expected to work longer than 48 hours a week (I worked over 70 hours a few weeks ago) and again with no overtime compensation.

The FL company does offer 'benefits', if you can call them that - it is cheaper to buy my own benefits at the prices they have set, so I don't have them.

Officially, I was hired as a 6 month temp. Unofficially, I have been told the entire time that they're working on getting me full time, and they're this close. Or that they're this close to bumping my pay up. The first time my 6 months was up, they mentioned in passing on a conference call that my contract had been renewed, no discussion. When trying to discuss it earlier this year, they brushed me off saying it was too early, then soon after announced another 6 month extension.

- I do not buy any of my own tools.
- I work in their facilities, side by side with their employees.
- There is no 'project' to work on, I share responsibilities and status with the full time employees I have been integrated with.
- I am supposedly allowed to work from home occasionally (or when I get called in to cover for somebody) but the means to do (a laptop) so have never been provided for one reason or another.
- I follow their procedures (and have to, to the letter) just as every full time employee does.

By all rights and purposes, if you watched me work where I do along with the other full time employees, you could not tell us apart.

But I'm worried that this weird situation of me living in one state, working in another, and technically being hired by the third in yet another state (although the NJ company is the one that *found* me, not the agency) has some sort of way to avoid this.

I've brought up overtime, and it was shooed away and they told me it's not their responsibility. (And it is not an environment where questioning your bosses gets you anywhere...)

I don't want to leave the company. I will if the permatemp situation continues... but I do not like working this many hours without being compensated.



So am I likely misclassified? Or is it more likely that in the web of state laws and contracts that I'm not. I don't *really* want to open an IRS investigation, as besides the overtime (coupled with the 'required' extra work) I don't really have any reason to want to leave.

Thanks!

[PattyPA]

The laws (or absence of laws) may be different in different states, but the IRS employee classification guidelines are the ones most often relied upon for IC issues.
http://www.irs.gov/taxtopics/tc762.html

But are you talking about misclassification as an IC when you should be an employee, or a temporary employee that should be a "regular" employee with benefits?

[Bubba Jimmy]

The fact that you are referred to as a "temp" says nothing about whether you are an employee or an independent contractor. Did you complete a W-4 form when you were hired and does the company that pays you withhold federal, medicare, and social security tax from your compensation? If you being treated as an independent contractor then overtime would not come into play. But it sounds as if the circumstances of your work imply you are an employee. You can file form SS-8 with the IRS and request a formal determination.