I Don't Think I'm Really an Independent Contractor

[LdiJ]

Or, to restate what you said: But that is ONE OF the factors that the IRS uses to determine whether or not someone should have been treated as an employee.

(You'll notice that I said "That alone doesn't make them an employer.") emphasis added

The point I am making Zig, is that is a major factor. From the IRS website:

Common Law Rules
Facts that provide evidence of the degree of control and independence fall into three categories:

1. Behavioral: Does the company control or have the right to control what the worker does and how the worker does his or her job?
2. Financial: Are the business aspects of the worker’s job controlled by the payer? (these include things like how worker is paid, whether expenses are reimbursed, who provides tools/supplies, etc.)
3. Type of Relationship: Are there written contracts or employee type benefits (i.e. pension plan, insurance, vacation pay, etc.)? Will the relationship continue and is the work performed a key aspect of the business?

As you can see from the above, it really is a major factor.

 

[Zigner]

The point I am making Zig, is that is a major factor. From the IRS website:

Common Law Rules
Facts that provide evidence of the degree of control and independence fall into three categories:

1. Behavioral: Does the company control or have the right to control what the worker does and how the worker does his or her job?
2. Financial: Are the business aspects of the worker’s job controlled by the payer? (these include things like how worker is paid, whether expenses are reimbursed, who provides tools/supplies, etc.)
3. Type of Relationship: Are there written contracts or employee type benefits (i.e. pension plan, insurance, vacation pay, etc.)? Will the relationship continue and is the work performed a key aspect of the business?

As you can see from the above, it really is a major factor.

The company is client with a forceful demeanor. That does not mean there is any right of, or even any actual "control".

 

[zddoodah]

the costs to travel to Colorado to do that would eat up most, if not all of the $2,000 he might win

We don't know where in Ohio and Colorado these folks are, but a round trip flight between Cleveland and Denver is about $150-200, and a night at a Denver area hotel can easily be had for under $100.

 

[Taxing Matters]

We don't know where in Ohio and Colorado these folks are, but a round trip flight between Cleveland and Denver is about $150-200, and a night at a Denver area hotel can easily be had for under $100.

I should have said could instead of would. As you point out, there are a lot of variables involved in that cost. But the OP also needs to consider not just the direct travel expense cost, but the opportunity cost of any time lost from working while taking this trip, too.

 

[Taxing Matters]

But that IS one of the major factors that the IRS uses to determine whether or not someone should have been treated as an employee.

Two points. First, how the IRS decides employee status for federal tax matters is not exactly the same as what Colorado or Ohio courts use for those determinations (though it would likely be Ohio law that matters here). Moreover, we need to understand the totality of the relationship to make any good conclusion about employee status regardless of what set of factors are used: federal law, Ohio, or Coloado. Second, while judgediatl2 seems fixed on this employee vs. independent contractor issue, I still haven't heard him lay out how that affects his pay dispute. He said his dispute was that he was not paid for all the work done. That dispute doesn't turn on whether he's an employee or not unless there is more to it than he's indicated so far.

 

[Zigner]

That dispute doesn't turn on whether he's an employee or not unless there is more to it than he's indicated so far.

The dispute doesn't change, but the avenue(s) for recourse could be affected.

 

[Taxing Matters]

The dispute doesn't change, but the avenue(s) for recourse could be affected.

How so? Unless it's a minimum wage dispute, and it doesn't sound like it is, I don't see the federal or state labor departments doing anything about this dispute. So what other avenues, besides the civil lawsuit, do you see?

 

[Zigner]

How so? Unless it's a minimum wage dispute, and it doesn't sound like it is, I don't see the federal or state labor departments doing anything about this dispute. So what other avenues, besides the civil lawsuit, do you see?

If the OP is an employee (I'm not convinced and am not addressing that in this post), then it is a problem that the state of Ohio would be concerned with. It is, in essence, a "minimum wage dispute" (if the OP is paid $0, that is less than minimum wage).

https://ohio.gov/wps/portal/gov/site/help-center/faqs/labor-law/labor-law

*************************************************************************************
My employer hasn't paid me. What can I do?

Carefully read and complete the minimum wage complaint form and mail to:
Ohio Department of Commerce
Division of Industrial Compliance
Bureau of Wage & Hour Administration
6606 Tussing Road
P.O. Box 4009
Reynoldsburg, OH 43068-9009
*************************************************************************************
(The link to the complaint form doesn't work for me)

 

[Zigner]

To add to the information I posted above: Ohio will only help the OP receive the minimum wage for the amount of time the OP is claim to have worked. If the OP wishes to collect more than that (under the theory that he was an employee), he would need to sue. So, ultimately, if he's gonna sue anyway, he might as well sue for the full amount, as you (@Taxing Matters) are saying.

 

[Taxing Matters]

To add to the information I posted above: Ohio will only help the OP receive the minimum wage for the amount of time the OP is claim to have worked. If the OP wishes to collect more than that (under the theory that he was an employee), he would need to sue. So, ultimately, if he's gonna sue anyway, he might as well sue for the full amount, as you (@Taxing Matters) are saying.

Exactly what I was getting at. And consider, too, that Ohio's ability to enforce its laws against an out of state employer is going to be pretty limited.

 

[Zigner]

Exactly what I was getting at. And consider, too, that Ohio's ability to enforce its laws against an out of state employer is going to be pretty limited.

Fair enough

 

[quincy]

If judgediatl2 believes he can support the amount he is owed, he can file suit in small claims in Colorado and, if he is successful, he should walk away with enough of the $2000 to have made the suit worthwhile - assuming the website owner has money and will pay. Collecting on a judgment is often the most difficult task.

Although attorneys are not allowed in small claims, judgediatl2 could find a legal aid clinic in his area or at a law school who will offer an opinion on his chances of success for low or no cost.

Again, a link to a guide on Colorado’s small claims is provided in the other thread.

 

[Taxing Matters]

Although attorneys are not allowed in small claims...

Attorneys are not excluded entirely in Colorado small claims court. The plaintiff cannot have an attorney UNLESS the defendant uses an attorney. If the defendant will use an attorney, the defendant must notify the court and the plaintiff in advance of the trial so that the plaintiff may get an attorney if he/she wants one. Also, if either party is a lawyer (even if the dispute has nothing to do with the person being a lawyer) the lawyer must disclose that to the court and the other party will be allowed to get a lawyer. In that circumstance, the lawyer representing himself is also to announce to the court at the start of the trial that he/she is a lawyer, too. So while lawyers are discouraged in Colorado small claims, it is possible to have lawyers in small claims.

Again, a link to a guide on Colorado’s small claims is provided in the other thread.

I went and looked at that link and it's a helpful one with forms and some brief information on small claims court. I would also suggest the OP look at the Colorado Courts much more extensive Small Claims Handbook as well. There is a lot of good info in there.

 

[quincy]

I linked that in the other thread.

This is the problem with having two open threads on the same matter. I will ask that the other thread be locked.

 

[judgediatl2]

Update:

OK, so I have been doing my diligence on this the last week or so, but I'm hitting a wall. Before going the route of legal council, getting in touch with the IRS seemed like the most sensible (and easiest) option to start. Which is what was suggested here. But easy is a relative term. Getting someone on the phone to answer a few simple questions has been a nightmare! I've been calling the main number over and over, trying almost every option and button press I can for days on end. It usually just dumps me out into a "sorry, this line is not taking calls" message. I even managed to get a few operators in the business tax department to pick up, who referred me to both the misc tax department and the "advanced" tax law department. But again, both lines just hit me with an automated message and disconnect me.

I need a few questions answered about the best way to move forward on the paperwork side of things, and ensure all my Ts are crossed, and my Is are dotted correctly (since they're such a stickler for that). I also want to ensure I'm 100% clear on the steps to come, in case it comes up with an attorney or my ex-boss later.

So my questions is, can anyone give advice on how to get in touch with someone at the IRS to get this process started? I don't want to just fax a form in and hope for the best. I want to ensure it's all done correctly and through the proper channels. I need a number or department I can ask for, besides just the main line. Any help on that front?