Dear darlings Doree and Krucoff: Guess what? You’re both wrong about Sheila McClear.
Which is excellent! For the aforementioned recently laid-off Miss McClear, that is. Who says? Why, the New York State Department of Labor, in its concerted two-year effort to crack down on employers who misclassify their workers as independent contractors!
“UI and Independent Contractors:
If you were hired to perform services as an independent contractor, you may still be considered an employee under the law and may be entitled to unemployment insurance benefits. Whether the relationship is one of employer-employee will depend on the degree of supervision, direction and control the employer has over the services.” [NYDOL]
“If an employer-employee relationship exists, it does not matter how the relationship is described by the person engaging the services. For example, if an employer issues individuals a 1099 form rather than a W-2 form, the workers may still be considered employees. Even if the workers sign a statement claiming independent contractor status and waiving any rights as employees, or if they are required to obtain a DBA in order to work for that employer, those individuals may still be considered employees under the law. The Unemployment Insurance Law provides that no agreement by employees to waive their rights under the law is valid.” [Itals all moi.]
The irony, really.
Oh, can we stop saying Sheila was fired? It’s a layoff. You can debate the semantics but the New York State Department of Labor has a glossary for this stuff…Clearly she wasn’t “fired.” She wasn’t escorted from the building by an HR goon and told never to return (though obviously that can happen with a layoff too) but instead was given a month’s notice due to the company’s reorganization and cost-cutting. The terms of separation mean something very specific when filing for unemployment benefits and while you can collect unemployment for being “fired” under certain circumstances, Sheila’s situation is cut and dry, if also high and dry…
Sure, Sheila wasn’t fired. But she also wasn’t, technically, an employee. Gawker staffers are all contractors and as far as I know she will not be eligible for unemployment.