Why Maryland home care workers should be wary if their agency calls them “independent contractors”

August 29, 2016: Have you ever worked for a home care agency that gave you a 1099 instead of a W-2? That means the agency treated you as an “independent contractor,” as if you have your own business. It also means you were treated as if you didn’t have most of the rights employees have: minimum wage, overtime, worker’s compensation, unemployment insurance—the list goes on. But did you know that you can be an employee—and be entitled to all the rights and protections employees have—even if you get a 1099, and even if you signed something that says you’re an independent contractor?

First some definitions. An independent contractor is someone who’s in business for herself. For example, most plumbers are independent contractors. Plumbers are hired to fix a problem, and they usually get a one-time payment for completing a project rather than a regular paycheck.  

An employee, though, isn’t in business for herself. Instead, an employee depends on her employer for work. For example, restaurant servers depend on their restaurant for work. They’re not in business for themselves. That means they’re employees, not independent contractors.  

Most home care workers who work for agencies aren’t in business for themselves.  Rather, they depend on their agency for work. That means most home care workers are employees, not independent contractors. If a home care worker’s agency controls her pay rate and schedule, she is almost definitely an employee.

When employees are wrongly treated as independent contractors, it’s called “misclassification.” When an employee is misclassified as an independent contractor, it can cost her protections, benefits, and a lot of money.

The most important thing to remember is this: even if you get a 1099 instead of a W-2, and even if you signed something that says you’re an independent contractor, you can still be an employee under the law. That’s because what makes you an employee or independent contractor isn’t the way you’re paid or any agreement you reached with your boss. The question is whether you’re truly in business for yourself, or if you depend on your employer for work.  

If you’ve been misclassified as an independent contractor, you might be owed money.  And the Public Justice Center might be able to help.  

Questions? Curious to learn more? Call the Public Justice Center at (410) 625-9409, and tell us why you’re calling. We offer free legal services to Maryland residents.