can my former employer with hold my last check?

[jpittard789]

Cumming, GA: I started working for this business owner about 6 months ago. No paperwork was involved when i started. I was given a check every week with no taxes taken out. 3 days ago he called and let me go. Now he wants me to fill out an "employee application" so he will have my tax information and ssn before he gives me my last check. but he says I cannot file unemployement because i was never and employee of his. can he do this? what can I do?

 

[pattytx]

What type of business was this and what type of work did you do for them? It's important.

 

[jpittard789]

It is a company that builds hydrogen generators for vehicles. I was one of his two employees, worked 9-5 and I build the products. running machinery, cutting plastic, soldering computer boards, etc.

 

[pattytx]

Georgia is a problem, because they have virtually no wage and hour laws of their own, and federal wage and hour laws do not state a specific period of time after termination by which final pay must be received.

For your wages, you can either file a civil suit in the Georgia courts (small claims might work) or a claim with the federal Dept. of Labor (although I've heard that the federal DOL enforces only to the extent of minimum wage).

Regarding, unemployment, file anyway. It appears that this employer was erroneously treating you as an independent contractor instead of an employee and I don't see any way you could legally be considered an IC. The state will contact the employer and ask him why no UI wages were reported and the employer will have to justify IC status (which I doubt very seriously he will be able to do).

Regarding SSN and address, there is no upside at this point in completing an application. Give him the information he is requesting in a letter. BTW, this is information he should have requested when you started, IC or employee status not withstanding.

 

[jpittard789]

At this point, I am considering letting everything pass and not giving him my information and SSN so that he will have to pay the taxes and not me. I think I will be paying more in taxes than i would be receiving in my last check. Is that just wrong?

 

[pattytx]

You're going to have to report the income and pay taxes on it anyway. Plus BOTH portions of FICA/Medicare AND no unemployment benefits. Do you really want to do that?

 

[xylene]

You're going to have to report the income and pay taxes on it anyway. Plus BOTH portions of FICA/Medicare AND no unemployment benefits. Do you really want to do that?

Why would the poster have to pay taxes as he was an independent contractor if he chooses not to file a wage claim?

Why exactly is the poster allowed to stick his head in the sand about being paid under the table until it is a wage claim issue?

 

[pattytx]

Because all income must be reported. The IRS says so.

 

[jpittard789]

I understand the IRS states that I must report all income, and I agree. Just as a side question, will my former employer be able to 1099 me without my SSN? Thanks for all your help by the way, I really appreciate it. I just want to make sure I do the right thing.

 

[csi7]

certified mail

The information requested is necessary at the beginning of employment due to requirement of employers to report new hires as required by the unemployment compensation office. If there is an attorney referral free consult available in your area, do the free consult. You're going to have your life turned upside down, inside out, and a clear name to hire on with another company to resolve this matter. Good Luck. Also, do everything certified mail, for proof.

 

[pattytx]

Just as a side question, will my former employer be able to 1099 me without my SSN?

Nope, he will not. In fact, even if you WERE an IC (legally), he should have had you complete a W-9 (instead of a W-4), which would have given him this information. Without it, he should have been withholding (at least) federal income tax at the backup withholding rate of (I think) 20%. This guy didn't do either thing right.

 

[xylene]

Explain

Because all income must be reported. The IRS says so.

If the poster is an independent contractor he has to pay those 'self employment taxes' - and the wage issue is a matter of contractual payment.

If the poster is truly an employee, he does not have to pay 'self employment taxes' because of the errors or willful omissions of the employer.

My point was rhetorical: getting paid for work without having taxes withheld as an employee, or without a clear contract is asking for trouble, and yes it does hurt the poster on the tax issue and the 'wage' claim.

 

[jpittard789]

without giving him my SSN, how can I go about reporting my income so I don't get in any trouble?

 

[pattytx]

without giving him my SSN, how can I go about reporting my income so I don't get in any trouble?

You just report it on your 1040 and your state income tax return. You don't NEED to have a 1099 or W-2 to complete your tax return correctly. But why wouldn't you give it to him? Like I said, he should have asked you for it at the very begininng.

 

[xylene]

You just report it on your 1040 and your state income tax return. You don't NEED to have a 1099 or W-2 to complete your tax return correctly. But why wouldn't you give it to him? Like I said, he should have asked you for it at the very begininng.

and the fact that he didn't should have been a major red flag.