Hired as an Employee, but Treated as an Independent Contractor During Probation

[nwm]

My question involves labor and employment law for the state of New York
I got employed by a mall 4 weeks before and they told me they will do the w2 with me, I signed the w4 form and the NYS notice of pay, but afterwards, I got 1099, the manager told me there is one month probation before they can put me for w2. Is this legal since I signed Notice of Pay means I'm a employer instead of independent contractor. By the way, I work 2 days a week.

[cbg]

It may be. It may not be.

http://www.irs.gov/Businesses/Small-...ed-or-Employee

[flyingron]

Probationary vs. non-probationary doesn't make a difference. As shown in the link cbg provided, they can't treat a PERSON as a contractor if that person fits the definition of an employee. If we're still talking security guards where they tell you when and where to work, you have to be an employee.

[cbg]

It's not quite that simple, though. There is no single element that, if met, automatically means employee (or IC). It's a preponderance of evidence.

[flyingron]

No single element, but I didn't say there was. I said I suspected in the case of a mall security guard, that it would be hard to make an argument for the person being an independent contractor because of the Behavioral tests (and if the behavioral tests FAIL to amount of "preponderance: on the other principles will tilt things towards being an IC.

[cbg]

[I]If we're still talking security guards where they tell you when and where to work, you have to be an employee.[/]

I don't want to get into an argument about this, but I'm having a hard time translating this as anything but, this (these) elements automatically make you an employee. There's no reference to a suspicion or an opinion, just a flat out statement.

[DAWW]

The legal burden is to show the worker is not an employee. Basically all workers are legally employees until shown otherwise.

The notion that a worker is an independent contractor during probation, then once the worker passes probation suddenly becomes an employee is fairly suspect because probation per se is not one on factors used to determine status, and as stated, it is implied that all other factors (the ones the law actually looks at) remain the same before and after. I am not going to say that this is impossible, but I do not like the "employers" chances if this went to court/hearing. The obvious missing step is to look at the webpage CBG cited and see what the worker's classification looks like absent this probation nonsense. If the worker can legally be an IC, then the "employer" can legally choose to treat them as an employee. The reverse is not true.