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Hiring independent contractor? Be prepared to document that he’s not an employee

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in Compensation and Benefits,Discrimination and Harassment,Hiring,Human Resources

A recent federal court decision means you’ll now have to go the extra mile to prove that your worker is an independent contractor, not an employee.

Advice: Take steps to document exactly why you believe someone is an independent contractor when you begin using his or her services.

Recent case: Ray Aponte, who is Hispanic, provided video production services at the Apollo Media Center. He was classified as a Videographer I. His white counterpart was classified higher and paid $21.50 more per hour.

Aponte claimed he did the same work as the white videographer and asked for a modest increase of $4 per hour. That’s when he stopped getting assignments.

He sued, alleging race discrimination under Title VII and New York state law.

Apollo Media claimed Aponte was never an employee, but had been an independent contractor. Apollo asked the court to toss out the case. Since independent contractors aren’t covered by either Title VII or New York state law, Aponte would lose the case if he were classified as an independent contractor rather than an employee.

The court refused to dismiss the case and instead said the parties had to provide documentation of the working relationship. Because there are many factors that go into deciding whether someone is an employee or an independent contractor, the court wanted all the facts on record before deciding. (Aponte v. City of Buffalo, et al., No. 08-cv-128S, WD NY, 2009)

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