My question involves independent contractors in the state of: Texas, working with a company based in Florida.
First post here, so thank you in advance for your help. I have searched for 2 days and have not found a good answer for my situation, so I'm posting.
I for sure am misclassified as an independent contractor for the business I work for, that is easy and I intend on filing the SS-8 document. Its already filled out. I'm waiting for an attorney's response today regarding some of the terms of the actual consulting agreement. I would assume that because the agreement is so heavily dependent on me being independent and having certain common luxuries of me being independent, which are now restricted through this agreement, that there is some sort of laws violated.
My goal is get a new consulting agreement, as mine is continuously restrictive and down-right shameful that I even signed it. If the IRS finds that I should be an employee (they, no doubt in my mind, will), does that invalidate the entire Consulting Agreement, because it is unlawful? I'm happy to continue a W2 employment with common law rights such as At-Will, but right now, I feel like an indentured servant with no options and locked in this misery for the next 3 years and then some.
For instance, some of the terms:
- Company can terminate me if I do something stupid, but I can't quit at all. I'm locked in. This thing has been active for 6 years and auto-renews for another 3.
- The address for me is incorrect, and reflects me being in Oklahoma and an Oklahoma entity, but I live and operate the business in Texas
- Contract will end if I die, if the company folds, or a material breach unrectified within 30 days.
- Material breach is defined for the Company, in that the only thing that triggers a material breach from their perspective is not paying me or reimbursing my expenses. However, I can breach the agreement 20 different ways.
- An Exhibit is supposed to list my job responsibilities and duties. Exhibit Page says (Attached), but nothing is attached. I don't have a clear understanding of the job. It is whatever the boss says it is that day.
- I am supposed to be provided direction and a budget for expenses, but have neither. I just do the work that is asked of me or handle customers phone calls and emails every day with my company email address
- I am supposed to have an Annual Review every year, but have only had one once. Does any of this get the company in trouble?
- I am forced to carry my own health insurance policy, and businss liability insurance. What happens if I don't?
- Agreement says I shall be treated as an independent contractor no matter what, and am not entitled to any benefits. However, separately, and not listed in the ICA, I have an available bonus program made available to employees of the company
- I am not allowed to work for anyone else whether it relates directly or indirectly to the Business, even though I operate and independent consulting firm. I am the business. This means I can't consult or work for anyone with any of the relevant skill sets that I have.
- Everything I do, everything I come up with, hear about, or conceive, for my business, belongs to the Company. They can elect whether they want to take it or not, but don't have to respond if they want to put stuff in limbo.
- I'm not allowed to talk about this agreement with anyone other than the law-firm of the Company that prepared the documents, and the Company itself. I believe I get Attorney Client Privilege by Law, but, apparently the document says I shouldn't do that.
- I have an ongoing NDA for 2 years beyond the conclusion of this agreement, limited to the geographical places I work, which are listed, but also says the list is evolutionary and may change with time. Does this include every state I have worked in or traveled to, or just my primary locations I visit?
- The Company can assign this agreement to an entity so long as I agree
- Severability Clause
- Counterparts Clause
- Waiver of Breach Clause
- Arbitration location Clause - Florida
- Counterparts Clause