Judge Rudy Reports : Contract Worker Or Employee?
By: Rudy Serra
Q: I WAS A CONTRACT WORKER for 24 years for one of the Big Three. Can I file a lawsuit saying that I was really an employee because of the time involved? I had a company business card and a company employee badge.
Answer: Strictly speaking, when you ask “can I file a lawsuit,” the answer is almost always yes. The real issue is whether you’re likely to win. Without knowing a lot more, the advice I can give is limited. You may want to consult an attorney who specializes in employment law. If you are no longer on the job, it is important for your attorney to under-stand exactly what you’re trying to do. Do you want to obtain employee benefits, or are you trying to be compensated for unemployment or some injury?
The difference between an employee and an independent contractor has been the subject of many cases. Generally, the law says that a court will look at the contract involved, and will apply certain standards and tests. In some cases the courts will apply a reality test. The court will look at the real-life facts, and will consider a variety of factors. These include things like; which party [employer or contractor] decides when the work has to be done? Which party provides the tools? Is the worker supervised or independent? Does the employer require the work to be done at a particular place?
Before you get to looking at such factors, you may have to get past the language of the actual contract you signed. The terms of your employment agreement will be treated as enforceable unless you can show some reason to look past them, such as fraud or duress or mistake.
Some of the things you mentioned would probably be considered as evidence that you really had an employment relationship. Other facts might support the claim that you were merely a contractor. When a company gives you a card that authorizes you to rep-resent yourself as an agent of the company, for ex-ample, an agency relationship is indisputable. Not all agents are employees, but all employees are agents. The long period of time you were working would also probably weigh in your favor.
An attorney will probably want to see a copy of your contract. Michigan courts generally favor strict enforcement of contracts. It can be difficult to get a court to look beyond the terms of a written contract and consider the nature of your employment relation-ship. Based on the factors you mentioned, though, it may be worth looking into further.
JUDGE RUDY REPORTS is a regular feature in Ferndale Friends. This ¨ask the lawyer¨ format column welcomes questions from readers. If you have a legal question or concern, send your question by email to rudy.serra@sbcglobal.net. Advice about specific cases cannot be provided but general legal questions and topics are welcome.
