Contracted employee/got fired

[gulbahor83]

What is the name of your state (only U.S. law)? New York
I was hired on Feb 15 of 2013, my employer told me that I am being hired on 1099, since that was my only option and I needed a job I agreed, however I had set hours (Mon-Fr 10am-6pm) and had to work 40 hours a week (After being fired I googled and realized that conditions under which they hired me was not an independent contractor but rather an employee). I had a set salary plus commissions from sales. They made sure my every paycheck had a different amount. When sales went down they wanted me to work harder to get more sales, although when I was hired I was not told that I needed to get more customers because I was hired as customer service representatives and not sales person, but since my salary was very low I had to make more money on sales, however that was only for me not for the company. Lately they were not happy with my work and blamed me for slow business and simply fired me without any notice and did not pay me for last two weeks of work, which was $900.00 My last few paychecks were about the same amount, because payment for my sales were paid directly to me and commissions were not included into paycheck. Every time I received a pay I signed an invoice where I would say that I am in independent contractor and receiving payment for my services. First they paid me with personal check, then they simply transferred money to my account which withheld $15 transfer fee and even though I asked them to pay me with personal checks they refused.
The place has cameras in all rooms including a hall, there is another doctors office in the same floor with camera (not sure if it works though). Cameras can prove that I was there mon-fr 10am-6pm, but I am not sure if I can ask for footage. I was fired yesterday and since then I have been searching on internet and found many posts saying that if I had certain hours to work set by employee and worked on instructions give by him than I should be treated as an employee, which means my employer had to pay taxes for me and if I was fired I could have be eligible for unemployment. I'm not sure if I can get unemployment, but is there any way I can at least get paid for last two weeks, because I worked necessary hours and completed everything I was suppose to. If I can fight for it what would be my next step. I don't have much money to hire a lawyer right now, could someone advise me maybe some pro bono services

Thank you

 

[OHRoadwarrior]

There are more well versed sources here that will soon reply, however, I think your first issue is to file with the NYDOL , for misclassification and non payment of wages. If that is unfounded, sue for breach of contract.

 

[cbg]

Just for clarification, it is not automatic that if you have your hours set by the employer and/or have instructions from the employer that you are guaranteed to be an employee. There are about 20 possible indicators and it goes by the preponderance of evidence. The DOL is quite clear that there is no single factor that defines an employee and/or an independent contractor.

I'm not saying that you were not an employee; I'm clarifying how the terms are defined.

Your first two steps are to apply for UI and to seek clarification of your status with the DOL.

 

[commentator]

If you were working as a 1099 and you should have been classified as a regular employee, the employer MAY have been failing to meet their state unemployment tax reporting requirements. What you do is file a claim for unemployment right away, and when no wages show up for you from this employer, you request a wage protest, ask the agency to investigate and find out if you should get unemployment benefits, based on the employer's situation.

If it appears that you should have been a regular employee, and they should be classifying all their employees as regular taxed payroll employees, and they have not been, partly to avoid paying state unemployment taxes, you may be able to draw benefits out of the general fund while the state unemployment tax system goes after this business. They can ultimately shut them down, if it goes that far.

As to getting your lost payment for work done back, the unemployment system has nothing to do with that.

In any case, file, and explain your situation to the unemployment system, and request a wage protest when they initially tell you that you are not eligible. This means you cannot file on line, you must figure out some way to speak to a human being, because if you just file a claim on line, you'll just receive something saying you have no covered wages and are not eligible. And then you'll be told that if you believe this is wrong, you can call xxxx (some certain number) to appeal this denial. And it will be the same thing, just takes a lot longer to do it.

You do not need an attorney to do this for you. They cannot help you regarding your current situation with unemployment. And it will be a long drawn out procedure, and will be complicated, but not on your part. Of course, this set of problems and delays is one of the big old downsides to ever accepting and working at a job where they're offering you this sort of deal. Sure you may think you're getting more money this way, but not really. It's practically an invitation to be cheated and not paid correctly, have no Social Security or income tax wages taken out for you, leading to more complications later.

As far as the pay you believe yourself to be owed for the last few days you worked, contact the DOL and let them tell you if you have any recourse under these particular circumstances.

 

[swalsh411]

The $15 fee is also illegal. You must be given all your pay "free and clear".