Employer Owes me remaining pay, also mis-classified

[BrandonG]

I'll try to keep this as simple as possible, but want to keep as much relevant detail as possible.

I drove a semi truck for someone (he leased the truck onto a large carrier who had the customers). I worked for about 1 year. I was paid $1,100 / week. No taxes were taken out.

After he took a 6 week vacation, he came back and kept making excuses why he couldn't make it out on Monday to bring my pay. At this point he owed me $6,200. (One week was a different, shorter route than I normally did, paid $700 that week).
When 3 weeks went by after he came back, that is when I quit. July 2013.

A couple weeks later, we met and he paid me $4,000, and said he would pay me the other $2,200 once he got his security deposit back from the carrier for the Qualcomm computer unit installed in all the owner-operator & fleet owner trucks.

Weeks went by and nothing came. Finally I text him again after the new year, and now he is claiming he isn't going to pay me because of an accident I was involved in with his truck. The accident was not my fault, I was hit by someone backing up (automatically their fault, if they hit something while backing up), and I was at a dead stop, at a truckstop in line for the fuel island to fuel the truck.

He refuses to pay me the $2,200 (after telling me he would pay me, which I think admits that he did owe me), and says he is keeping it to pay his insurance deductible (which is only $1,000, because I remember seeing the insurance policy in the truck), plus other damages he had to pay, due to the accident I was in, which was not my fault anyways.

I gave him all the insurance info that I got from the officer who got it from the guy who backed into me. Not my fault my former boss didnt sue their insurance.

So now I'd like to get my $2,200 of pay. I am hoping this is a cut and dry, black and white case.

However,
I would also like to sue him for his share of the employment taxes for 2013, that he should have paid, but didn't, since he hired me as a contractor, with a 1099, forcing me to have to pay it.
I believe I was mis-classified and should have been an employee.

1)I drove his truck
2)I was told when and where to pick up, and when and where to deliver
3)I was told where to fuel, where to get oil change, and was told to pay for the fuel with his fuel card
4)I was told how much I would be getting paid
5)I did not pay for any of the expenses, and the job did not give me any kind of time to have other work with other companies
6)I did not sign a contract with him of any sort, it was verbal

Im not sure how much this will be, but would be over $1,000.

In addition to wanting to sue him for his share of the employment taxes, I want to also sue him for unemployment benefits, since not being paid for 6 weeks gives me good reason to have to quit. I was unemployed for 10 weeks before I found another job. In Michigan, the maximum weekly amount is $362/week. Since I was hired as a contractor, he didn't pay any unemployment taxes. So I want $3,620 for that.

So I would like to sue for a total of $6,000, but the small claims court only allows up to $5,000. So I will sue for that.

So here are my questions

1) As far as the wage claim is concerned, do I have a case? What kind of proof would the judge/magistrate need to see from me?

2) Would they hear my claim about being mis-classified in a small claims court?

3) If so, would I be able to get a judgement for the taxes and unemployment benefits?

4) Do I have to send this guy a written demand letter for the money, and wait for 30 days before I sue? Somewhere I think I have read that, but not sure.

5) He paid me with a check under the name of his business name. Would I have to sue his business, or can I sue him?
He also had a "business partner" that I had never met, who lives in another state. Would I have to sue him as well? I'm not sure who's name the business was in, if it wasnt both, but the truck insurance was in his name, and he signed my paychecks.

Thanks in advance for any and all replies, and any questions about details I may have left out, I will be happy to answer.

Again, thank you.

Brandon

 

[Proserpina]

You're located where?

 

[eerelations]

If you're in the US (and why you neglected to tell us what state you're in I can't figure), I have a question:

Why are you taking this issue to small claims court when it would be better, cheaper and way way way more appropriate to take it to your state or the federal DOL?

 

[BrandonG]

I thought I had mentioned I live in Michigan. Sorry.

I guess that's why I'm here, not sure to go to small claims, or not.

Is it possible to get my money by going to the DOL? DOL is not a court, I just figured that if I wanted to get what's owed me, then a judge has to decide that, and I think according to the Constitution, doesn't he have a right to tell his side of the story, whatever that may be?

Please tell me more about this Dept of Labor option and how it would be easier and way more appropriate?

Again, thank you.

 

[commentator]

There is not the remotest chance you could sue and ask for what you supposedly "would have" drawn in unemployment benefits. You cannot sue for, file for or in any way recoup supposed non-payment of unemployment benefits by going through small claims court. Unemployment is handled only by the unemployment system. You should begin the process by filing a claim for unemployment benefits. No one gives unemployment benefits or collects the taxes through which they are paid but the state's unemployment system. No judge can grant you unemployment benefits or force the former employer/contractor to pay them. No other court could make the assumption that if you had not been misclassified, and your employer had been paying in taxes on you for unemployment purposes, you would have been certified and eligible to draw xxxx amount of money from the unemployment system. It just doesn't work that way.

When you quit the job due to non payment, you would have filed the for unemployment claim through the regular state unemployment system, listing this particular employer as your separating employer. You would be told that you are not covered. You would have appealed this decision, and requested that the Michigan Department of Labor/unemployment system investigate whether you were misclassified, whether the employer was mis-classifying you as a 1099 when you should have been a regular employee. This process would have taken months, at least many weeks to resolve and may or may not have worked out for you.

Since you quit in mid July of last year and did not file the claim for unemployment benefits, there is no potential for damages based on a claim that you never filed. Unemployment is based on the first four of the last five quarters, and it has been several quarters since you last worked for this person, not to mention other possible covered employers. If there are no covered wages in the base period used at the time of filing, there is no unemployment to be drawn, regardless of the reason you left the job.

You messed up everything when you agreed to this arrangement for payment and compensation, and you seemed to be quite happy with the arrangement until he quit paying you timely. So now it's been this long, and you're just getting around to noticing that you really got messed up by not paying in taxes on this employment, etc. With no sort of contractual agreement, even as a 1099, it's going to be quite interesting to show that you need to be paid the additional $2200. Live and learn.

 

[BrandonG]

Ok first of all, "commentator", I didn't see you mention any law references. 2nd of all, seeing your name as "commentator" leads me to believe that you're merely commentating on what you read, as I did not read from you any references to law.

3rd of all, I have a right to work, even if I was misclassified. That doesn't waive my legal right compensation for work not paid for, plus unemployment.

Maybe I will give my state's DOL a call.

I've read of many cases where someone in my situation got what I am asking.

I merely asked if I should go to small claims, or go to another court.

I understand this is a "free advice" forum, and sure I'll take free advice, but I did not ask you to give me your opinion on whether I "should have" done this or that.
That was actually quite rude.

Oh, and btw, I never said I wasn't willing to pay my share of taxes. I have money set aside for this purpose, I'm not an idiot.

I do have proof from the carrier that I did indeed work all those weeks, and I do have text messages saved from my former boss where he does admit at one point that he owes me money.

 

[tranquility]

You didn't read any cases where a person in a similar situation got what you want.

I am not going into detail because of the dismissive attitude to a person making a reasoned response to a person who thanks in advance "any and all replies". That goes double when time has shown commentator to be quite knowledgeable on unemployment matters.

But, on the surface of wanting what you could have gotten from unemployment from the purported employer, it is not going to happen. I could give any of a number of reasons but will point out the basic problem of "mitigation of damages." A person who is claiming to be hurt by another must mitigate his damages. That is, he must take reasonable steps to prevent the damage from happening. Say a guy smashed the sunroof of your car. You saw this and heard the weather report of a hard rain coming tonight. You don't do anything and the rain enters your car, fills it up, and ruins it. When you sue the guy in court, what damages will you get?

You would get the cost of repairing the sunroof. Why not the value of the ruined car? Because a reasonable person would have put plastic on the roof to prevent the entry of the rain you knew was coming.

Same here. If you wanted unemployment, you should have signed up for unemployment. It is not his fault you did not sign up, it is yours. You failed to mitigate your damages.

As to the classification and other issues, see supra.

 

[cbg]

It does not appear that you completely understand what is meant by "right to work" in employment law.

 

[BrandonG]

I see.

I had not idea about this "mitigating" thing. Law is too complicated.

It hasn't been a year yet, but just over 6 months. So I don't think any law of time limitations has run out yet.

I did not know I could even collect unemployment until someone mentioned it to me, had never had to collect unemployment before, since I have always worked.

I called Michigan dept of labor, and talked with an investigator for a bit.

She told me about the process, and she did tell me that it does sound like I was misclassified, but it is not in their DOL jurisdiction to award unemployment, or back taxes, but they can determine that I was indeed misclassified. However, the process does take a while. They have to send him a letter asking for all records, which he by law has to provide. I dont think he'll be able to provide those, since he is very bad with paperwork.

I just did not appreciate being told "live and learn" when someone owes me pay, especially if they're violating labor law.

As far as a small claims for district court not having the jurisdiction to award tax or unemployment claims, I can understand that completely.

 

[Proserpina]

Ok first of all, "commentator", I didn't see you mention any law references. 2nd of all, seeing your name as "commentator" leads me to believe that you're merely commentating on what you read, as I did not read from you any references to law.

3rd of all, I have a right to work, even if I was misclassified. That doesn't waive my legal right compensation for work not paid for, plus unemployment.

Maybe I will give my state's DOL a call.

I've read of many cases where someone in my situation got what I am asking.

I merely asked if I should go to small claims, or go to another court.

I understand this is a "free advice" forum, and sure I'll take free advice, but I did not ask you to give me your opinion on whether I "should have" done this or that.
That was actually quite rude.

Oh, and btw, I never said I wasn't willing to pay my share of taxes. I have money set aside for this purpose, I'm not an idiot.

I do have proof from the carrier that I did indeed work all those weeks, and I do have text messages saved from my former boss where he does admit at one point that he owes me money.

Well, you're wrong about one thing.

You don't have a "right" to work at all.

 

[BrandonG]

Since when did this become a political soapbox?

Having a 'right' to work, as far as I know from a legal perspective, is being allowed to work in a place without having to join a union.

As far as my usage in this thread, I was trying to maintain that since I need to work to survive, working for someone on a 1099, even though I know I am being mis-classified, does not waive my rights to labor law.

And if you want to be political about it, yes we do have the right to work. Would you maintain that we don't, and instead we need the gov't to take care of us?

The most fundamental right we have is the right to survive by our own means, rather than at the hands of someone else, lest we be slaves.

 

[Zigner]

Well, you're wrong about one thing.

You don't have a "right" to work at all.

He's also wrong about knowing of people who were court ordered to pay for unemployment benefits that were never applied for in the first place

ETA: Oh and that somehow any employer has ever been court ordered to pay the employer share of taxes directly to the employee.

 

[Zigner]

Since when did this become a political soapbox?

Having a 'right' to work, as far as I know from a legal perspective, is being allowed to work in a place without having to join a union.

As far as my usage in this thread, I was trying to maintain that since I need to work to survive, working for someone on a 1099, even though I know I am being mis-classified, does not waive my rights to labor law.

And if you want to be political about it, yes we do have the right to work. Would you maintain that we don't, and instead we need the gov't to take care of us?

The most fundamental right we have is the right to survive by our own means, rather than at the hands of someone else, lest we be slaves.

You have no particular "right" to force any employer to have you work for them. So, no, you have no inherent "right to work."

 

[Proserpina]

Since when did this become a political soapbox?

You tell me?

Having a 'right' to work, as far as I know from a legal perspective, is being allowed to work in a place without having to join a union.

And is irrelevant to your situation.

As far as my usage in this thread, I was trying to maintain that since I need to work to survive, working for someone on a 1099, even though I know I am being mis-classified, does not waive my rights to labor law.

And if you want to be political about it, yes we do have the right to work. Would you maintain that we don't, and instead we need the gov't to take care of us?

I'd concede the point if you could show me some law, anywhere, that supports your position.

The most fundamental right we have is the right to survive by our own means, rather than at the hands of someone else, lest we be slaves.

I imagine plenty of the inmates on Cell Block 8 would heartily agree with you.

 

[BrandonG]

I never mentioned one has a right to force someone to hire them. That's slavery.

You assumed things, you shouldn't do that. Everyone has the right to at least work for themselves. Everyone has the right to put themselves out for consideration to be hired. Of course you can't force someone to hire you, I never mentioned that.

I thought this was a help site with professionals answering questions. I guess I was wrong about that, this is an informal opinion forum, no different than any other type of forum, and I'm sorry I even came here.

I'll be talking to a prosecutor on Sunday that my family is good friends with.

We'll see what she has to say.

Thanks anyways.