You go to work every day wondering whether you will be hit on, flirted with, or touched inappropriately. You know your status as an employee depends on how you respond to these sexual advances. But your job is off the books. Is there anything you can do about it? Can you file a sexual harassment claim if you are paid under the table? A hostile work environment can make every day a challenge, but if you are paid in cash you may face even bigger hurdles than your fully-employed counterparts. In today’s blog post, I will discuss the challenges faced by workers who get paid off the books in filing sexual harassment claims against their would-be employees.

Am I an Employee?

It may sound simple, but before you can file any kind of workplace discrimination claim, including sexual harassment, with the Equal Employment Opportunity Commission (EEOC), you usually have to first be an employee. Independent contractors, partners, and other non-employee workers are not covered, so many employers looking to avoid payroll taxes will claim their “under the table” workers are either independent contractors or volunteers.

Whether you are an employee or not depends on the specific facts in your workplace. The more control your boss has over when and how you do your job, the more likely you are to be considered an employee. Your official title, or whether you are paid off the books, isn’t necessarily as important as the work you do and the level of supervision you receive. Instead courts will consider a number of factors like:

• Who controls when, where, and how your work gets done?
• How much skill or expertise is required to do the work?
• Who supplies the equipment, tools, and materials to do the job?
• Do you work on-site or remotely?
• Can your boss assign you additional tasks?
• Does your supervisor dictate your working hours or the length of the job?
• How are you paid?
• Do you hire your own support staff?
• Is the work you do part of the employer’s regular business?
• Is your employer a business?
• Do you have your own business?
• Do you receive benefits?
• Does your employer pay taxes for your wages? (This can often work against “under the table” employees, but is only one factor among many.)
• Can your boss fire you?
• Do you and your boss consider you an employee?

Employee Protections Against Sexual Harassment

No matter whether you are paid cash or receive a W-2, as an employee, you are protected against sexual harassment in the workplace. That includes unwelcome sexual advances, requests for sexual favors, unwanted physical or verbal advances, and other sexual comments. Offensive remarks about a person’s sex are also grounds for a sexual harassment claim. But before you can file a lawsuit, the harassment must either result in an adverse employment decision (like firing or being passed over for promotion), or be frequent or severe enough to create a hostile work environment.

Special Challenges Facing “Under the Table” Employees

As with undocumented workers, employees who are paid cash face special challenges when they need to report sexual harassment. Just like with undocumented workers, employers will often use your status as a cash worker as a threat to keep you from reporting workplace discrimination and sexual harassment.

Your employer may withhold employee status unless you comply with their sexual advances. Refusal to hire is itself an adverse employment action, which may expose your employer to employment discrimination claims. However, bringing such a claim when you have been paid under the table may have unexpected and unwanted consequences.

Your employer may also threaten to report you for tax fraud if you come forward. While illegal immigrants face consequences from the Immigration and Naturalization Service (INS), cash workers could see trouble from the Internal Revenue Service (IRS). Failing to report employment income is illegal. The IRS penalizes employers who fail to disclose their employees and pay payroll taxes. But it also punishes employees who have undisclosed income under tax fraud statutes. Because of this, filing a claim for sexual harassment by an undisclosed employer can be complicated. You will need the help of an experienced employment discrimination attorney, and possibly a tax lawyer, to navigate the process and ensure that all your rights are protected. Without an attorney who understands the particular challenges “under the table” employees face, you could accidentally land yourself in hot water with the IRS.

Fight Back Against Sexual Harassment

It is always hard to stand up to sexual harassment in the workplace. But when you are a cash worker, the risks are even greater. At Eisenberg & Baum, our employment discrimination attorneys have years of experience dealing with all kinds of sexual harassment claims. We understand the complexities and care needed to handle “under the table” cases. If you feel like your employer has created a hostile workplace or is conditioning your employment on sexual conduct, contact us. We will meet with you and help you understand and fight for your rights as an employee.