Employment Classification

There are a few different categories of employees or workers. Figuring out which type of employee or worker you are is important because the laws are different for each type.

Employee or Independent Contractor

Your employment case may be about whether you are an employee or an independent contractor. In some cases, your employer will try to say you are an independent contractor because independent contractors have fewer legal rights, and your employer must pay more taxes and provide more benefits to employees. For example, the Fair Labor Standards Act and certain other wage laws do not apply to independent contractors. Also, and in general, employers do not need to pay unemployment insurance contributions or provide workers’ compensation coverage for independent contractors.

Independent contractors are self-employed and do not receive most of the rights and benefits that employees receive from employers. For example, as an independent contractor, you will be paid according to the terms of your own agreement, not according to a regularly scheduled payroll. Also, independent contractors are responsible for paying all local, state and federal taxes on their own from their income.

In general, if you sign a contract to do specific work for an employer, and you do the work your own way and are out of the day-to-day direction, control and supervision of your employer, you may be an independent contractor.

In order to figure out if you are an independent contractor, ask yourself the questions listed below. The more questions you answer “yes” to, the more likely you are an independent contractor and not an employee:

  • Do you control the style, content, creation and completion of the work?
  • Are you allowed to subcontract any of your work?
  • Are your job duties and obligations negotiated by you and your employer (salary, due dates, hours, etc.)?
  • Are you doing just a project or two instead of fulfilling a key part of your employer’s overall business?
  • Do you work at home instead of using an office at your employer’s business location?
  • Do you own and use your own tools, business equipment and supplies?
  • Is your work temporary?
  • Does your work require special skills instead of routine work that any typical employee can do?

At-will Employee or Contractual Employee

Your employment case may be about whether or not you are an employee “at-will” or an employee with a written employment contract. If you work on an “at-will” basis, your employer can fire you at any time, with or without prior notice, and for any reason or no reason at all, except when federal, state or municipal law prevents your employer from firing you for that reason.

Most employees are employed at-will, and your employer may ask you to sign an agreement that says so. If you do not have a written employment contract with your employer that makes it clear that you are NOT an at-will employee, then you probably are an at-will employee.

There are some employees who work under a contract that is negotiated and signed by both employer and employee. Employees working under employment contracts generally are not at-will employees. In general, these types of contracts are usually provided to executives, doctors and other professional or high-level employees. The contract may describe, among other things, the rights and responsibilities of the employee and the employer and the terms of employment, including salary, how long you will be working, possible reasons for termination, as well as any rights to severance pay upon termination of employment.

Union Member

In New York, if your particular job is covered by a union agreement, you have to join the union for your profession and pay dues. As a union member, your union agreement will control most of the terms of your job, including your wages, benefits, promotion and firing. Of course, the union agreement cannot violate federal, state or any other applicable laws.

Civil Service Employee

If you work for the government, then you may be a civil service employee. The New York Civil Service Law spells out your rights as a civil service employee, including hours, wages, benefits, suspension, promotion, transfer, termination and reinstatement. Also, under the New York State Constitution, you have the right to be considered for a civil service job based on your merit and fitness for a specific job, which may include having you take an exam as part of your application process.

Legal Editor: Daniel S. Braverman, January 2015 (updated June 2020)

Changes may occur in this area of law. The information provided is brought to you as a public service with the help and assistance of volunteer legal editors, and is intended to help you better understand the law in general. It is not intended to be legal advice regarding your particular problem or to substitute for the advice of a lawyer.

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