Employee or Independent Contractor? It Matters!

Employee or Independent Contractor? It Matters!
If you are part of the growing “gig” economy in New Mexico, you are probably working as an independent contractor. This can be a great thing, but it not only costs you money but it also let’s your “employer” off the hook for expensive things like employment taxes, benefits, overtime and compliance with federal discrimination laws. Yes, if you are truly an independent contractor, the federal government says it is OK for your employer to harass and discriminate against you based on age, race, gender, disability, national origin and religion! The employer can also make you work for less than minimum wage and not pay you overtime or offer you healthcare benefits. (New Mexico law is not the same as federal law on some of these issues). The bottom line is that it definitely matters whether you are an independent contractor or an employee.
The problem arises when a worker is really being managed like an employee, but is being called an independent contractor so the employer can avoid its legal obligations. The IRS and U.S. Department of Labor have issued many guidance’s on this topic and it has been getting a lot of attention from courts around the country. Most recently, the California Supreme Court joined many other state courts and adopted what is called the “ABC” test. Under that test, there are three main factors that decided whether someone is a contractor or an employee: (A) whether the employer controls and directs the work; (B) whether the work is outside the usual course of the employer’s business; (C) is the worker engaged in a independent trade, occupation, or business that he/she is performing for the employer. In other words, it would be relatively easy for a payroll company to pay a plumber as an independent contractor when the plumber is hired to fix a leaky pipe. However, it may be much harder for a rideshare company like Lyft or Uber to claim that its drivers who perform the main business of Lyft or Uber are not employees.
If an employee is not correctly treated as an employee, the employer can face severe penalties for underpayment of wages, additional damages and attorney fees. Contact our attorneys at Buchanan Law Firm, LLC.We have recovered tens of millions of dollars for our clients.
Hospital negligence resulted in catastrophic injury. This was a case involving a patient who entered the hospital for routine observation but left the hospital with catastrophic and permanent injuries due to neglect and improper treatment. This case involved extensive expert testimony on all aspects of the client’s care, both by hospital administration, hospital employees, and contractors who were involved in her treatment.
Semi-truck negligence caused wrongful death. This case involved a semi-truck driver who was intoxicated on illegal substances and killed our client. The key to this case was both aggressive discovery work, and understanding the trucking laws that regulate truck drivers and motor carriers, so we could prove how reckless it was to put the driver on the road that day.
Semi-truck negligence caused catastrophic injury. This case involved a semi-truck driver who lost control of his vehicle in a high-traffic area, causing devastating injuries to our client. We were able to reconstruct every step of the events leading up to the crash that day to piece together why this happened, using sophisticated experts in reconstruction engineering.
Semi-truck and corporate negligence caused traumatic brain injury. Our client suffered a traumatic brain injury as a result of the defendant’s negligence in parking a commercial vehicle. The key to this case was understanding trucking regulations and local ordinances at play to show how the situation should have been handled safely.
Semi-truck causing wrongful death. This sad case involved the tragic death of our clients when a semi-driver was high on illegal substances. The key to this case was working closely with law enforcement and our reconstruction expert to identify all of the assets we could recover for these clients so that they could be as fully compensated as possible.