3 The Employment Relationship

Your client naturally wants to focus on the particulars of their complaint, but you also need all relevant background facts. These include not only details about the employer (size, location, type, etc.) and the job (position, length of service, pay, etc.), but also your client’s citizenship/immigration status and the actual nature of the employment relationship.

Misclassification, which occurs when an employer mislabels the employee as an independent contractor to avoid financial obligations or potential liabilities, is common. Misclassification adversely affects workers’ pay rights, workplace protections, and ability to get some post-termination benefits.1  For clients to obtain relief available to employees but not to independent contractors, relevant definitions under particular statutes or controlling case law must be met. If a statute has no specific controlling definition, deciding whether a client is an employee or independent contractor is a factual, case-by-case determination. The most important factor is whether the principal retains the right to control and supervise the work (regardless of the degree to which that right is actually exercised). Other factors include selection and engagement, payment of wages, and power of dismissal.2

Your client’s immigration status might also be a factor relevant to available relief, either from your organization, depending on your funding sources, or under the law(s) that apply to their situation. Local resources usually exist if you need to refer a non-citizen.3

• 1For more detailed discussion of the consequences of misclassification, see the many publication of the National Employment Law Project on this topic. Misclassification, Nat’l Emp’t L. Project.
• 2See, e.g., Hillman v. Comm-Care, Inc., 01-1140 (La. 1/15/02), 805 So. 2d 1157.
• 3Lagniappe Law Lab maintains a list of legal aid organizations in Louisiana. See La. L. Help.