Unpaid Misclassified "Independent Contractor"

[salary7]

California

Needing your kind advise please...

About me: Worked for this verbal abusive Company Owner (let's call him "Mr. X") as part-time, ONLY BECAUSE he cannot afford my usual rate. Anyway after about 3 weeks, he gave me an ultimatum to do full-time, which I did for one day, then I quit abruptly.

I have 2 issues:

1.) Misclassified as Independent Contractor instead of W-2 Employee.
Upon hiring, I was told by Mr. X, that I should go ahead and fill out W-2 form before I leave (that was during my interview day, I was hired on-the-spot). Because I was too happy, I didn't verify the form I was filling out.
My first check didn't have any tax deduction and so I raised this issue to the accountant. She said I'm 1099 that's why. And so is everyone else, whose under salary and whose hours and place of work are controlled by Mr. X.

Can I sue Mr. X for making us all pay our taxes on our own or for just plain "misclassification"? Or since I can't sue for everyone, can I do so alone? If so, who do I go to?

Or if he does have the conditions to classify his workers as independent contractors, am I going to be penalized? If he brings a lawyer and I lose, will I be liable to pay his lawyer fees and other claims?

2.) Partial Payment/Unpaid Balance.
Mr. X has a knack of paying all his "independent contractors" either late or partial. When I quit, I had to constantly email and phone them to finally pay me. And when I did get a check after a month, as expected, it was not in full.
It's been 3 weeks now since that check and I still haven't got the balance.

I have proof of the company's admittance of the balance they still owe me.

Since I am classified as independent contractor, I cannot go to DLSE since I am not within their jurisdiction from what I understand. Please advise me who to go to since I can't seem to find answers from google.

And I think this guy's done enough and so I would like to claim for damages as well.....is that possible?

Please help...
Thank you so much!!!

 

[eerelations]

You cannot sue for being misclassified as an independent contractor (IC). The correct route to take would be to go to the DLSE and the IRS and tell them you've been misclassified as an IC. If after investigating they determine that you have been misclassified as an IC, they will levy some penalties on your former employer and order it to pay you what you're owed.

All of this will take at least six months, possibly a year. If you want your money sooner, skip the misclassification stuff and go directly to small claims court. You can add court costs to what you're suing for.

 

[salary7]

Thank you so much for your kind reply. If I do go for small claims first to get my pay sooner, can I report him for misclassifying afterwards? I just really want to nail this guy and bring justice to all our plates. The thing is, this is my second time an employer put all of the workers under 1099. I think it's becoming a trend and shouldn't be tolerated. Thanks once again...

 

[Eureka!]

Before you rush off to small claims contact a few attorneys. Are other employees also misclassified? Also you may be owed more than you think; after unpaid overtime, meal/rest period violations, and pay stub violations, et cetera you may well be looking at over the $7500 small claims maximum. The law does not prevent you from being able to go directly to superior court (sue the employer). You are not requred to go through the DLSE first.

 

[HappyWanderer]

If you don't have a reasonable belief as to why you should be classified an employee, you have the potential of being sued for the employer's costs.

You can sue on the "contract".

While I agree with the other posters of what you can do, you have not presented any real facts for a person to apply the federal rules of if you are an employee or an independent contractor.

There are benefits to being an employee. But, there are disadvantages too. The cost of litigation and the effort of your time are two.

Why do you think you are an employee?

 

[pattytx]

1.) Upon hiring, I was told by Mr. X, that I should go ahead and fill out W-2 form before I leave (that was during my interview day, I was hired on-the-spot). My first check didn't have any tax deduction and so I raised this issue to the accountant. She said I'm 1099 that's why. And so is everyone else, whose under salary and whose hours and place of work are controlled by Mr. X.

YOU don't fill out a W-2 form; employees complete W-4 forms. The company controlling hours and place of work do not, in and of themselves, indicate employee status (although they might, depending on other factors).

What type of business is this and what exactly are your job duties (I'm not addressing all the other employees)?

 

[salary7]

Thank you all for answering...

I work as a Technical Designer for an apparel company. The reasons why I think I should be classified as employee are as follows:

1. It is an integral part of the company's daily operations whereby no activity from patternmaker, sewers, cutters, etc occurs producing the product without sketches and instructions laid out on this thing we call "tech packs" which is done by a technical designer.

2. The owner controls my hours in the sense that he demands more of my time because a technical designer really has a lot of work to do and are in fact known in the industry to be the last ones to leave the premise nightly and my 5 hours (i'm part-time 5 hours since he cannot afford my usual rate) is just not enough.

3. My being part-time only became an issue after a couple of weeks and as a matter of fact made him distressed. He then demanded that I should come in full-time, regular hours, which I did for one day, then quit.

4. I work at his office. All my tools and supplies are provided.

5. In all my years in the apparel industry as technical designer, I have never heard of 1099 being applied in the design team, unless a designer is freelancing without regular hours, meaning the rest of the team cannot predict when he is available to do the job next. For "designers" freelancing is common, but for "technical designers", very, very rare. And besides, I was not hired as freelancing. I was supposed to have an annual rate but since employer cannot afford my usual rate, that's when he was willing to receive me as part-time.

That's all I could think of for now....

Also, I already filed an initial claim to DLSE a couple of days ago. Besides the balance, I addressed my issue as misclassified on the "remarks" section. I'm not sure if I did the right thing here.

thanks so much once again...

 

[pattytx]

Part-time or full-time is a non-factor in determining employment status.

Based on what you have said, I agree that you very well may have been misclassified. I think what you have on the claim form is fine. Good luck.