How To Identify And Report An Illegal Job Posting

Photo: Chris Ware, Getty Images

Earlier this week, Epicurious site director David Tamarkin excitedly tweeted that they were in need of a “sharp, cooking-obsessed editorial assistant.” Within 48 hours, the posting had been mercilessly roasted by Media Twitter, and the New York State Department of Labour was even forced to intervene. What happened?

First, let’s take another look at the posting itself:

To anyone who’s read more than a few “entry-level” job descriptions, this is depressing but familiar stuff: a major corporation wants to hire one person (“at the start of his/her career,” naturally) to do the work of roughly three full time, experienced employees, for an undisclosed hourly wage and no benefits.

From a work-life balance perspective, there are a lot of red flags here, but there are also some very real legal problems with the original posting. There’s a fine line between “this job would probably suck” and “this is actually illegal” and all job seekers — especially young people, or anyone starting out in a new industry — need to know the difference.

When it comes to job postings, the most common violations have to do with worker classification and/or discrimination against members of a protected class. Knowing your rights — and how to report illegal activity — is the first line of defence against exploitative labour practices. Here’s what to look out for.

Worker classifications, tax laws, and labour standards

To understand why this job posting blew up the way it did, you should know the difference between an independent contractor and an employee.

The main difference between the two is who is responsible for withholding taxes on earned income: Independent contractors and freelancers withhold and pay their own taxes, while employees have their taxes automatically withheld by their employer.

Taxes aren’t the only thing at play here, though; the “independent” part of “independent contractor” is just as important. If you’re doing freelance work for a company, they have absolutely no say in how or where you get your work done, so long as you complete it in a timely manner.

This means that employers cannot require freelancers to come into an office, attend meetings, or otherwise tell them how to spend their time:

Legally, there’s no such thing as a “full-time freelancer.” Even if a job posting advertises a freelance position that requires 40 hours of work each week, they can’t force an independent contractor to adhere to a usual Monday - Friday 9-5 schedule.

The Epicurious job posting made the mistake of advertising a freelance position with not only a full-time employee’s workload, but strict requirements for where the work is done: In their office, presumably during the standard work week.

The bottom line: If a job posting specifies when, where, and how you’ll work for them, they had better be withholding taxes from your paycheck — and ideally providing you with a benefits package.

If you feel like you may have been wronged or mislead in a job posting head over to the fairwork.gov.au site to find out more about our situation.

How to report violations

If there is an issue with a workplace or employment conditions/entitlements you can send in an anonymous report with the Australian Government. You can also approach your HR department with your concerns if you feel you are able to.

If and when you run across exploitative or illegal job postings in the wild, don’t be afraid to make a little noise. Share them with your friends, post them on social media, do whatever you have to do to get it noticed.

More than ever, workers need to speak up for our rights — silence only enables further exploitation.


Comments

    There are a number of reasons employers try this sort of thing on. Main ones being that they don't need to allow for leave, payroll taxes, or superannuation if you are genuinely a contractor. That adds up to a lot of coin.

    Having said that, just because they say they don't have to cover that doesn't always mean they don't. So always check. You may find that you really are considered an employee, and that they should be putting away into Superannuation, or covered for workcover, and those sort of things.

    And if they wont fix it, report them. The ATO takes that sort of thing seriously, and while they wont respond to you directly, the accusations are looked at, with all evidence considered.

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