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  1. #1
    Join Date
    Oct 2020
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    Default Does Nda Apply After Being Reclassified from Employee to Contractor

    My question involves independent contractors in the state of: Georgia
    I signed an NDA as an employee and was then reclassified as an independent contractor about a year later. I continued to work with this company in that capacity for 4 more years. I never signed a contract or other NDA as an independent contractor. Does the NDA I signed as an employee apply to confidential information received after I became an independent contractor?
    Thanks!

  2. #2
    Join Date
    Oct 2016
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    Default Re: Does Nda Apply After Being Reclassified from Employee to Contractor

    That will depend on the wording of the NDA but you as a person signed it. And you will be the one that has to defend against any claim that may arise from it.

  3. #3
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    Jul 2018
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    Default Re: Does Nda Apply After Being Reclassified from Employee to Contractor

    Quote Quoting emnola
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    I signed an NDA as an employee and was then reclassified as an independent contractor about a year later.
    Reclassified by whom? And why? Did your duties or the manner in which you performed them change in any way?


    Quote Quoting emnola
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    Does the NDA I signed as an employee apply to confidential information received after I became an independent contractor?
    No one who hasn't read the document can intelligently answer this question other than by saying, "maybe."

  4. #4
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    Oct 2020
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    Default Re: Does Nda Apply After Being Reclassified from Employee to Contractor

    More detail:
    I was reclassified by my employer as a subcontractor for the purposes of the company avoiding payroll taxes and carrying a workers comp policy. I have this explicitly stated in an email. My duties and the manner in which I performed them did not change. I have no doubt that it was an illegal misclassification.

    The opening paragraph says "In consideration of my engagement as an employee of..." and contains no reference that would include me later working for them as a contractor. I would be happy to post a redacted version of the document if that is allowed here.

    My position is that under the NDA I would have been obligated to return any confidential information upon my termination and that would start the clock on the non-solicitation terms (for a period of two years). I was then given free access to all of the company's "confidential information" as a subcontractor with no NDA governing my relationship with the company as a subcontractor, so now could do with them as I see fit.

    Thanks for your replies.

  5. #5
    Join Date
    Sep 2020
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    178

    Default Re: Does Nda Apply After Being Reclassified from Employee to Contractor

    Quote Quoting emnola
    View Post
    More detail:
    I was reclassified by my employer as a subcontractor for the purposes of the company avoiding payroll taxes and carrying a workers comp policy. I have this explicitly stated in an email. My duties and the manner in which I performed them did not change. I have no doubt that it was an illegal misclassification.

    The opening paragraph says "In consideration of my engagement as an employee of..." and contains no reference that would include me later working for them as a contractor. I would be happy to post a redacted version of the document if that is allowed here.

    My position is that under the NDA I would have been obligated to return any confidential information upon my termination and that would start the clock on the non-solicitation terms (for a period of two years). I was then given free access to all of the company's "confidential information" as a subcontractor with no NDA governing my relationship with the company as a subcontractor, so now could do with them as I see fit.

    Thanks for your replies.
    Since you never returned the information, you are still obligated to.
    Having said that, the simple fact of the matter is that you were (are?) still an employee, a fact of which you are aware of because you know that you were illegally classified.

  6. #6
    Join Date
    Jul 2018
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    2,745

    Default Re: Does Nda Apply After Being Reclassified from Employee to Contractor

    Agree. I don't see that the arguably illegal or erroneous misclassification is going to somehow void or terminate the NDA. However, as indicated previously, one would need to read the thing to know for sure.

  7. #7
    Join Date
    Nov 2013
    Posts
    7,056

    Default Re: Does Nda Apply After Being Reclassified from Employee to Contractor

    Quote Quoting emnola
    View Post
    More detail:
    I was reclassified by my employer as a subcontractor for the purposes of the company avoiding payroll taxes and carrying a workers comp policy. I have this explicitly stated in an email. My duties and the manner in which I performed them did not change. I have no doubt that it was an illegal misclassification.

    The opening paragraph says "In consideration of my engagement as an employee of..." and contains no reference that would include me later working for them as a contractor. I would be happy to post a redacted version of the document if that is allowed here.

    My position is that under the NDA I would have been obligated to return any confidential information upon my termination and that would start the clock on the non-solicitation terms (for a period of two years). I was then given free access to all of the company's "confidential information" as a subcontractor with no NDA governing my relationship with the company as a subcontractor, so now could do with them as I see fit.

    Thanks for your replies.
    I hope you got at least a 30% raise when they reclassified you because that is the average of what you lost. You now pay self-employment insurance, you are not covered by workman's comp, they don't pay for vacation or personal days off.

    You no longer work for them. You are not an employee. You are self-employed. I disagree that the NDA is any longer in force. The reclassification was illegal and your former employer has dirty hands.

  8. #8
    Join Date
    Jan 2011
    Posts
    401

    Default Re: Does Nda Apply After Being Reclassified from Employee to Contractor

    Why is this suddenly an issue now? You stated that the agreement was an NDA and also had non-solicitation language. Did you also sign a non-compete and now your contract has been terminated?

    If I were you I would file the SS-8 with the IRS.
    https://www.irs.gov/forms-pubs/about-form-ss-8

    I was reclassified by my employer as a subcontractor for the purposes of the company avoiding payroll taxes and carrying a workers comp policy. I have this explicitly stated in an email.
    I hope you have that backed up in several places.

  9. #9
    Join Date
    Mar 2013
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    18,340

    Default Re: Does Nda Apply After Being Reclassified from Employee to Contractor

    Quote Quoting emnola
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    The opening paragraph says "In consideration of my engagement as an employee of..."
    You're still an employee regardless of how you are classified by your employer. If you walk like a duck and quack like a duck, you're a duck, even if somebody says you're an owl.

    My take: The agreement is potentially enforceable by your employer. I'm not sure that the "dirty hands" doctrine would provide you with a defense since you were complicit in the illegal misclassification.

    Quote Quoting bcr229
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    Why is this suddenly an issue now?
    My guess is that the arrangement has been terminated and OP wants to strike out on his own and use the employer's property to his own advantage.

  10. #10
    Join Date
    Oct 2006
    Posts
    16,474

    Default Re: Does Nda Apply After Being Reclassified from Employee to Contractor

    Quote Quoting bcr229
    View Post
    Why is this suddenly an issue now? You stated that the agreement was an NDA and also had non-solicitation language. Did you also sign a non-compete and now your contract has been terminated?

    If I were you I would file the SS-8 with the IRS.
    https://www.irs.gov/forms-pubs/about-form-ss-8


    I hope you have that backed up in several places.
    Not only that, but once the IRS rules on the SS-8, the OP should consult a tax professional about whether or not it would be in his best interest to amend what returns he has to include Form 8919.

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