It can be challenging to be an independent contractor. For one reason, you probably aren’t able to count on a regular paycheck to pay the bills. You may also experience weeks or months of unemployment between jobs.
An even worse challenge, perhaps, is getting fired for a reason you know would be illegal if you were an employee, such as discrimination or retaliation. As an independent contractor, though, the U.S. Equal Employment Opportunity Commission (EEOC) states that these laws don’t apply to you because you are not an employee. Arguably, the West Virginia Human Rights Act also would not protect you for a wrongful termination.
So, what can you do? There are a few things you may be able to do. If your termination caused a breach of your contract with the employer, you might be able to file a lawsuit on those grounds. Doing so, though, may not provide you the same remedies as if you were an employee who suffered unlawful retaliation or discrimination.
The other thing you can do is investigate whether or not you were misclassified as an independent contractor. It may be that you should have been classified as a regular employee, but your employer failed to do so – and then fired you for an unlawful reason. Under such circumstances, proving misclassification might serve as a step toward winning a wrongful termination lawsuit, but you may be able to sue and recover damages for both violations.
What Is an Independent Contractor in West Virginia?
Understanding whether or not you were misclassified as an independent contractor starts with understanding how West Virginia classifies this type of worker. Currently, West Virginia uses an “ABC” test to determine if a worker is an independent contractor.
Under the ABC test, a worker is an independent contractor if the following are true:
- A) The individual has been and will continue to be free from control or direction over the performance of the services, both under his or her contract of service and in fact; and
- B) The service is either outside the usual course of the business for which the service is performed or that such service is performed outside of all the places of business of the enterprise for which such service is performed; and
- C) The individual is customarily engaged in an independently established trade, occupation, profession, or business.
If the above description of an independent contractor does not sound like the working relationship you have with your employer, you may be a misclassified employee. If that is the case, you may consider seeking an attorney to help you investigate your claim and pursue legal action against your employer.
Misclassified & Wrongfully Terminated? We Can Help.
At Bailess Smith PLLC, we understand that a wrongful termination, retaliation, or failure to pay wages claim that involves a potential misclassification of an employee as an independent contractor is a complicated legal matter. Rest assured, though, that we can help you sift through the issues and fight for what you deserve as a result of these violations.
For more information about how we may be able to help, schedule a free initial consultation with us today by calling (304) 553-0337 or by contacting us online.