Am I considered an employee if I have been working as a 1099 contractor at the same business for 2 years?

I have been a 1099 contractor for the same employer for 2.5 yrs. 13 months
ago they gave me the opportunity to work full-time in-house, providing a
desk and specific hours, 40hr per week. I have an email stating after 90 days
I would become an employee and be brought onto house payroll. This never
happened so I continued to bill as a 1099 contractor. Now the employer
suggests they had never agreed to my billing terms and my supervisor let me
know the CEO is considering letting me go, thinking they have been
overcharged for services. In Aug 2016 I presented a proposal for working in-
house specifically, it did not include working out on locations which we do
several times a year. I billed location work differently than my office hours as
I remained a 1099 contractor. From what I understand I am not entitled to any
unemployment benefits as they never paid employment taxes on me. Am I
consider an employee and am I entitled to benefits?

Asked on September 24, 2017 under Employment Labor Law, California

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 3 years ago | Contributor

Based on what you write, you were an employee: working hours set by the employer, at a location they determined, in their office, and (presumably) under their supervision (you reference your "supervisor") are all hallmarks of being an employee. If you meet the criteria to be an employee, it does not matter what they called you or how you billed:  the facts of the situation trump how it is described. You should be entitled to unemployment benefits; in addition you may be entitled to a certain amount of retroactive compensation, such as the employer share of FICA, which they should have paid for you; possibly overtime, if you would not have qualified as exempt from unemployment and ever worked more than 40 hours per week; possibly the cash value of any health insurance premiums they would have paid for you if you were an employee; etc. Try contacting your state department of labor file a "misclassification" complaint as well as to file for overtime if let go.


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