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

[judgediatl2]

What is the name of your state? Ohio & Colorado

Just getting a second opinion on this, to ensure I have the full scope of what I've recently been told.

A recent pay dispute (which I'm also getting help with here on the forums) led me to start doing research into both Colorado and Ohio labor laws. To my dismay, I found that many of these protections only apply to actual employees (and not independent contractors). But to my surprise, I found something else quite interesting. There were a few Colorado based tax attorney sites that list several ways people are often misclassified as an independent contractor. To my shock, I ticked like 7 out of 10 boxes! I've also heard this can result in an employer being required to pay back taxes owned to their misclassified employee (all of which I've had to pay out of pocket on my own).

Just a few questions on this. How hard is it to win a case like this, or are they usually unwinnable cases? Because I feel I can make a very good argument that I was treated as an employee but only compensated as a 1099. Also, if I did want to pursue it, what kind of attorney would I need? Would tax attorneys handle the actual suit? And if I lose, could I open myself up to any legal trouble?

 

[zddoodah]

How hard is it to win a case like this, or are they usually unwinnable cases?

I'm not sure what sort of meaningful response you might expect to this question. The difficulty or winnability of any given case depends on the relevant facts and applicable law.

if I did want to pursue it, what kind of attorney would I need?

An attorney who handles employment law cases.

Would tax attorneys handle the actual suit?

It is possible that a lawyer could be both a "tax attorney" and also handle employment law cases. However, this is generally not the sort of thing a "tax attorney" would do.

if I lose, could I open myself up to any legal trouble?

In the abstract, virtually anything is possible, but this is an incredibly vague question. It may suffice to say that the non-prevailing party in civil litigation may be obligated to pay the prevailing parties costs of suit (which typically does not include attorneys' fees).

 

[Taxing Matters]

How hard is it to win a case like this, or are they usually unwinnable cases?

How likely it is that you would succeed depends on all the details of the relationship you had with the employer and the evidence you have to prove it. They can be easily won in circumstances in which the factors of control over the work that are used in the particular jurisdiction heavily favor the supposed employee. It gets harder to win the more factors there are that would point to being an independent contractor.

Also, if I did want to pursue it, what kind of attorney would I need? Would tax attorneys handle the actual suit? And if I lose, could I open myself up to any legal trouble?

What exactly would you sue for? If you want to sue the employer for more pay as a result of your pay dispute, what you generally need is an attorney who litigates employment law matters. A tax attorney would handle a dispute over employee vs. independent contractor issues that arises between a taxpayer and a tax agency. Some attorneys may do both, but that will be less common.

 

[LdiJ]

I swear that I answered this thread today but I have a different solution to suggest. I suggest that you do not hire an attorney at all. I suggest that you file Form SS-8 with the IRS and let them determine whether you are an employee or a contractor. Then, if they determine that you were an employee, then amend whatever returns are still open for a refund to remove Schedule C and add Form 8919 to get back the employers share of the Social Security and Medicare tax (in your case, half of the self employment tax).

All of the other taxes you would have had to pay anyway. Now, the downside to this is if you took a lot of expenses on your Schedule C you could possibly end up owing more tax. However, filing the SS-8 could put the employer in a world of hurt with the IRS.

As far as 2000.00 unpaid money is concerned, that is something that really is a small claims issues and you don't need an attorney in small claims court. However, its likely that you would have to travel to the employers state to file the small claims case and that might eat up more than you could get.

 

[quincy]

I swear that I answered this thread today but I have a different solution to suggest. I suggest that you do not hire an attorney at all. I suggest that you file Form SS-8 with the IRS and let them determine whether you are an employee or a contractor. Then, if they determine that you were an employee, then amend whatever returns are still open for a refund to remove Schedule C and add Form 8919 to get back the employers share of the Social Security and Medicare tax (in your case, half of the self employment tax).

All of the other taxes you would have had to pay anyway. Now, the downside to this is if you took a lot of expenses on your Schedule C you could possibly end up owing more tax. However, filing the SS-8 could put the employer in a world of hurt with the IRS.

As far as 2000.00 unpaid money is concerned, that is something that really is a small claims issues and you don't need an attorney in small claims court. However, its likely that you would have to travel to the employers state to file the small claims case and that might eat up more than you could get.

judgediatl2 has another similar thread that he posted today.

https://forum.freeadvice.com/threads/my-final-check-was-withheld-falsely.660428/

 

[adjusterjack]

I swear that I answered this thread today

The same two questions appear on another site

 

[Litigator22]

What is the name of your state? Ohio & Colorado

Just getting a second opinion on this, to ensure I have the full scope of what I've recently been told.

A recent pay dispute (which I'm also getting help with here on the forums) led me to start doing research into both Colorado and Ohio labor laws. To my dismay, I found that many of these protections only apply to actual employees (and not independent contractors). But to my surprise, I found something else quite interesting. There were a few Colorado based tax attorney sites that list several ways people are often misclassified as an independent contractor. To my shock, I ticked like 7 out of 10 boxes! I've also heard this can result in an employer being required to pay back taxes owned to their misclassified employee (all of which I've had to pay out of pocket on my own).

Just a few questions on this. How hard is it to win a case like this, or are they usually unwinnable cases? Because I feel I can make a very good argument that I was treated as an employee but only compensated as a 1099. Also, if I did want to pursue it, what kind of attorney would I need? Would tax attorneys handle the actual suit? And if I lose, could I open myself up to any legal trouble?

Before the host of lawyers begin to queue at your doorstep ask yourself this:

Am I in a position to prove by competent, unbiased evidence that the conditions of my association with the Colorado Company has included micro-manage my services, meaning like when, where and how they are to be performed?

I dare say not. (Not with a number of intervening major watersheds.) And if not, then you can say goodbye to your last-ditch, self-serving master/servant theory!

Fancying that any lawyer is going to take your case for the meager two grand on the cuff, stand the entire costs of litigation hoping to collect on the other ephemeral end is indeed being fanciful - as in unreal.

 

[Taxing Matters]

I swear that I answered this thread today but I have a different solution to suggest. I suggest that you do not hire an attorney at all. I suggest that you file Form SS-8 with the IRS and let them determine whether you are an employee or a contractor.

That does nothing t to resolve the pay dispute with the employer. For that, he needs to sue the employer. We don't have the details of his pay dispute, other than he thinks he may not be an independent contractor. That still doesn't tell me what the real dispute is. It may be that dispute doesn't really turn on the classification as employee at all.

 

[quincy]

That does nothing t to resolve the pay dispute with the employer. For that, he needs to sue the employer. We don't have the details of his pay dispute, other than he thinks he may not be an independent contractor. That still doesn't tell me what the real dispute is. It may be that dispute doesn't really turn on the classification as employee at all.

His pay dispute is outlined in his other thread. He performed work for a website owner in Colorado and he hasn’t been paid for the work that he did. The amount he says he is owed is $2000. He was advised on the small claims process in Colorado.

 

[Taxing Matters]

His pay dispute is outlined in his other thread. He performed work for a website owner in Colorado and he hasn’t been paid for the work that he did. The amount he says he is owed is $2000. He was advised on the small claims process in Colorado.

Thanks. I bolded the most significant part of that. Whether he was an employee or not really doesn't seem to matter in that case since either way the dispute is simply not being paid for the work done. He certainly could sue in small claims court in Colorado, but as was likely pointed out in that other thread, the costs to travel to Colorado to do that would eat up most, if not all of the $2,000 he might win, and those travel costs can't be added into the judgment.

In Colorado small claims court (which is just a division of county court) the plaintiff cannot have a lawyer represent him/her unless the defendant has one.

 

[LdiJ]

That does nothing t to resolve the pay dispute with the employer. For that, he needs to sue the employer. We don't have the details of his pay dispute, other than he thinks he may not be an independent contractor. That still doesn't tell me what the real dispute is. It may be that dispute doesn't really turn on the classification as employee at all.

Yes, I addressed that in the rest of my post.

 

[judgediatl2]

Thanks for the info. My boss micromanaging me and instructing me on how to do things, not to do things a certain way, saying he wants me to do this instead of that, and telling me when I need to do things, is some of the key reasons I feel I have a good case for being treated as an employee. I pretty much was expected to be on call and have a 10 minute turn around on top of that. And believe me, that happened ALL the time. Among other things he did that we're shaddy.

 

[Zigner]

Thanks for the info. My boss micromanaging me and instructing me on how to do things, not to do things a certain way, saying he wants me to do this instead of that, and telling me when I need to do things, is some of the key reasons I feel I have a good case for being treated as an employee. I pretty much was expected to be on call and have a 10 minute turn around on top of that. And believe me, that happened ALL the time. Among other things he did that we're shaddy.

Demanding clients can be that way. That alone doesn't make them an employer.

 

[LdiJ]

Demanding clients can be that way. That alone doesn't make them an employer.

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.

 

[Zigner]

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.

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