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1099 vs w2

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piercejpierce

New member
OHIO so i was an warehouse manager under a 1099, but after research and talk via lawyer free consultation we both believe i was wrongly classified as a 1099 employee and I filed for unemployment and was denied twice but now today i got a letter stating it was sent to review commission "State of Ohio Unemployment Compensation Review Commission P.O. Box 182299 Columbus, Ohio 43218-2299 NOTICE THAT AN APPEAL HAS BEEN TRANSFERRED BY THE DIRECTOR TO THE REVIEW COMMISSION". the first two were denied due to "Did the claimant file a valid application for determination of benefit rights? An individual is entitled to a valid application if the individual is unemployed when they file and has been employed in covered employment in at least 20 qualifying weeks within the base period, has had an average weekly wage of at least $261.00, and for applications filed on or after August 1, 2004, the reason for separation from the individual's most recent employment is not disqualifying under sections 4141.29 (D)(2) or 4141.291 ORC. The base period is the first four of the last five completed calendar quarters prior to filing. 4141.01 (O)(Q)(R) ORC. ". so my question is how does the process of the phone interview work/ can i ask questions to employer,what should I expect? The idea is to prove he set the hours, the company trained me,there was no contract,that i could not come and go as i please which all is critical to prove i was a w2 employee not a 1099 under ohio law.
 


Zigner

Senior Member, Non-Attorney
You likely should (and already should have) requested that the IRS issue a determination on your proper classification as an employee vs an independent contractor. You can look at this site for more information: https://www.irs.gov/forms-pubs/about-form-ss-8

If the IRS issues a determination that you were an employee and not an Independent contractor, then your former employee won't have a leg to stand on.
 

PayrollHRGuy

Senior Member
While the IRS determination is useful to have in a UI appeal (or review in your case). It is not required. The Review Commission is perfectly capable of making the decision that you were an employee as defined by Ohio law.
 

Zigner

Senior Member, Non-Attorney
While the IRS determination is useful to have in a UI appeal (or review in your case). It is not required. The Review Commission is perfectly capable of making the decision that you were an employee as defined by Ohio law.
I agree. It's definitely not a requirement.
 

piercejpierce

New member
Ok, so what should I expect for the trial/ phone call? Should I mention in the first breathe about the miss classification? Can I ask questions?
 

PayrollHRGuy

Senior Member
The hearing will generally begin with the hearing officer asking questions. You should answer those questions as asked. If you get to the point where they ask you is there anything you want to add and if you don't feel that your issue has been completely covered explain your position. (ie you were an employee and should have been covered.) The hearing officer may ask follow up questions. The employer will also be allowed to ask you questions.

The process will then be reversed and the employer will be asked questions, make statements and they have to answer questions from you.

DO NOT INTERRUPT ANYONE. I don't care what lie the employer says. You will get your opportunity to rebut the statement.

Take notes while the employer is talking of questions that you want to ask or points you need to counter.
 

adjusterjack

Senior Member
Ok, so what should I expect for the trial/ phone call? Should I mention in the first breathe about the miss classification? Can I ask questions?
I'm guessing that you'll be asked to explain why you think you were misclassified. By then I hope you would have studied up on the difference between an employee and an independent contractor and will be able to point out the elements of the relationship that would support employee status.
 

FlyingRon

Senior Member
He doesn't have to justify WHY, just describe what he does for the company. I can't imagine a situation where a "warehouse manager" would properly considered an independent contractor. If he shows up on his employer's schedule at his employer's location with job duties as assigned by the employer, he is an employee.
 
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