1099 Worker - Employee or Not?

[kevinreece]

I'm in SC, and have been working for a company as a 1099 contractor for over a year. Recently, I was to leave the company. Are they under the same 48 hour rule to pay me any outstanding wages as they would a regular employee?

Thanks for your help!!!

 

[I AM ALWAYS LIABLE]

I'm in SC, and have been working for a company as a 1099 contractor for over a year. Recently, I was to leave the company. Are they under the same 48 hour rule to pay me any outstanding wages as they would a regular employee?

Thanks for your help!!!

My response:

No. Your billing is like any other bill - - subject to whenever they want to pay it, if they pay it at all - - in which case, you'd have to sue them like any other creditor that they may have failed to pay.

IAAL

 

[kevinreece]

Follow Up Question

Since they owe me $5,000, which they agreed to pay on January 15th (and haven't), what is a suitable time to wait before I file a claim in small claims? Also, is the judgment and execution thereof by the sheriff if not paid, something that works well? Or is there a good chance that they'll never pay, and won't have to?

Thanks very much!

 

[I AM ALWAYS LIABLE]

Re: Follow Up Question

Since they owe me $5,000, which they agreed to pay on January 15th (and haven't), what is a suitable time to wait before I file a claim in small claims? Also, is the judgment and execution thereof by the sheriff if not paid, something that works well? Or is there a good chance that they'll never pay, and won't have to?

Thanks very much!

My response:

First, I need to know, was your contract written or oral?

Second, how long was the term of your services to last; e.g., one year or less?

Then, we'll talk.

IAAL


[Edited by I AM ALWAYS LIABLE on 03-03-2001 at 07:45 PM]

 

[kevinreece]

More Information

Thanks again for the help! We had no written contract. It was all oral, and they had no guarantee of how long they would keep me on, which I understood, but, I worked for them for just over a year. I also rented office space from them, because I was an independent contractor, and also did work for other clients when I wasn't working for them. Since this has happened, I've moved out of the office. The deal they had with me, which was they couldn't pay the balance due until January 15th, was the same deal they had with their other 6 employees and contractors, so there are at least 6 other witnesses to when they said they would pay. What are your thoughts on this?

Thanks a ton!!!
Kevin

 

[I AM ALWAYS LIABLE]

Re: More Information

Thanks again for the help! We had no written contract. It was all oral, and they had no guarantee of how long they would keep me on, which I understood, but, I worked for them for just over a year. I also rented office space from them, because I was an independent contractor, and also did work for other clients when I wasn't working for them. Since this has happened, I've moved out of the office. The deal they had with me, which was they couldn't pay the balance due until January 15th, was the same deal they had with their other 6 employees and contractors, so there are at least 6 other witnesses to when they said they would pay. What are your thoughts on this?

Thanks a ton!!!
Kevin

My response:

As you may have suspected, there was a reason for me asking you the above questions. You see, most States (and South Carolina is no different) have what is called a "Statute of Frauds" (hereafter, "the Statute") which keeps everyone "honest" in their business dealings and requires certain types of contracts to meet certain criterion before they can be protected by the courts.

That's why I asked if your contract was written or oral, and how long was the term of the contract. Since your term was indeterminite; e.g., it was unknown how long you'd be working for them, you needed to complete your oral contract with them BEFORE a year had expired in order for your contract to be actionable - - no matter how many witnesses you had. And, if there was a chance that your term of "employment" could last over a year, it needed to be in writing.

"Title 32 - Contracts and Agents
CHAPTER 3.

STATUTE OF FRAUDS

SECTION 32-3-10. Agreements required to be in writing and signed.

No action shall be brought whereby:
(1) ;
(2) ;
(3) ;
(4) ; or
(5) To charge any person upon any agreement that is not to be performed within the space of one year from the making thereof;

Unless the agreement upon which such action shall be brought or some memorandum or note thereof shall be in writing and signed by the party to be charged therewith or some person thereunto by him lawfully authorized."


Since your contract lasted over a year, was not in writing (and obviously not signed), that unless there is some sort of written memorandum of the contract, you cannot collect if they decide not to pay you.

Sure, you could attempt to sue them, but a judge in your neck of the woods will bring up this same point of law to you.

As a business person, you should have "invoiced" them all along the way, and that way there would have been some sort of writing or "memorandum" of your work and what they owed you.

I wish you good luck, and I hope they aren't knowledgable of the above. If they are, that's probably, at least, one reason why they aren't paying - - they know they won't have to.

IAAL

 

[kevinreece]

One more Thing

Thanks, again, for your reply. I've noticed in this forum that you're usually right on when it comes to legal advice, so I appreciate you taking the time for me.

As far as invoices, I did invoice them weekly (net 15) for the work I did the previous week, and up until now they paid regularly. I did sign a non-disclosure/non-compete form when I was brought in, so could that be construed as a form of written contract?

Thanks again, I've looked into this a bit, but you're opening my eyes.

Kevin

 

[I AM ALWAYS LIABLE]

My response:

Kevin, Kevin, Kevin.

Why didn't you say this in your first post ? This "new" information was very important.

Okay, yes, now you have, at least, a memorandum of your contract in the form of invoices and their previous payments by check to you.

Now it's time to make a written "Demand", sent by "Certified Return Receipt" letter to them. Give them 10 days from the date of your letter to pay up. If they don't, you'll need to sue them. They've had plenty of time to pay.

Fortunately for you, the Small Claims court maximum jurisdiction is $5,000 - - the amount they owe you.

After you've filed your lawsuit, you'll need to Subpoena your witnesses to court, and do the same with all of their check payments to you. You can get the Subpoenas from the Court Clerk, when you pick up the Complaint form. When your hearing is set, bring all other documents with you to help prove a contractual relationship; e.g., your past paid invoices, right along with your unpaid invoices.

Small Claims cases are filed with one of the two Small Claims Magistrates' Courts in Charleston County. The Small Claims Court in Charleston is located at 995 Morrison Drive, and is open Monday through Friday from 8:30 AM to 5:00 PM. The North Charleston Small Claims Court is located at 2144 Melbourne Drive, Room 103, and is open Monday through Friday from 8:30 AM to 5:00 PM.

Go get 'em, Kevin !

IAAL

[Edited by I AM ALWAYS LIABLE on 03-04-2001 at 02:40 PM]

 

[kevinreece]

Thanks IAAL!!!

Will do.

Thank you very much. This is exactly what this forum is for, and I appreciate your help!!

Charleston County is 4 hours from me. Do I have to file in person, or can I call them and fax in a claim?
Also, do you mind telling me what happens as far as time frames, etc. after I file the claim? How soon do they get notified?

Thank you very much!

 

[I AM ALWAYS LIABLE]

Re: Thanks IAAL!!!

Will do.

Thank you very much. This is exactly what this forum is for, and I appreciate your help!!

Charleston County is 4 hours from me. Do I have to file in person, or can I call them and fax in a claim?
Also, do you mind telling me what happens as far as time frames, etc. after I file the claim? How soon do they get notified?

Thank you very much!

My response:

Okay, I wasn't sure of where you lived or worked, so I took a guess. There must be a courthouse closer to where you worked. It wouldn't make sense for there not to be. Call the Charleston court clerk and ask. I don't want you driving 8 hours roundtrip for nothing.

Well, you may not have to file in person; i.e., the court clerk may be able to mail the papers to you, you'll fill them out, send them back with your $55.00 filing fee, and the clerk will send back your filed copies along with a court date, time, and place. So, when you talk to the clerk, ask about this potential - - and don't forget about asking the clerk for subpoena forms (sufficient quantity) to be sent to you also.

Small Claims hearings go very quickly. They are usually set for no more than 6 to 8 weeks after filing. It's up to you have someone over the age of 18 to have the company, or the owner, served with the Complaint (you can't do it yourself because you're a litigant, which if you did, would set up an unlawful "conflict of interest"). Having a law enforcement authority do it for you is the best way. Sure, it will cost you a few sheckles, but at least you'll have an authority who can testify to say that they were, in fact, served with the Complaint if they try to deny service of process.

If you win, you'll get your court costs added to your judgment - - but not your Subpoena witness fees, or your lost time. These are necessary costs to prosecute your claim, and are not reimburseable as a result.

If the court clerk sends you the "package", the clerk will also send you instructions for filling the forms out, and also about exact time frames. Follow the instructions very carefully. Do not assume anything. If you don't understand something completely, ask questions. Because, the moment you make a mistake due to an assumption, you'll wind up back at square one.

Good luck Kevin, and please let me know how it turns out. I'll be here for you if you have any questions along the way.

IAAL

 

[kevinreece]

Thanks!

This is good information, and I hope it's useful to more people on this site than just me. You've been very helpful, and I know I'll have more questions as I get into this.

I'll call the clerk tomorrow, and will keep you informed. Thanks for your time!!

Kevin

 

[I AM ALWAYS LIABLE]

My response:

You're absolutely welcome Kevin.

It's nice to be able to help a good person like yourself, rather than some of the whackos that come here.

IAAL