Can an employer 1099 only 1 employee who works the same full time hours as the rest of the employees?

Small business flooring company with 10-15 employees who pay their employees
hourly wage. All employees get W-2’s except one who is 1099’ed but works the same
position and hours full time 30 hours or more per week as the rest of the
employees. Employee looking to avoid government garnishes by being a 1099
employee but not sure this is legal?

Asked on March 19, 2016 under Employment Labor Law, Ohio

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 4 years ago | Contributor

d on what you write, it is probably not legal. Neither employers nor workers can arbitrarily decide whether they are employees (paid on a W-2 basis) or independent contractors (1099 basis); rather, the designation is based upon the degree of control exercised by the employer and the degree of independence possessed by the worker. If the worker in question does the same thing, for the same hours, as W-2 employees, he is almost certainly an employee, too, not an independent contractor, and needs to be paid as an employee, on a W-2 basis, with withholding (and more easily subject to garnishment). Failure to do this can be tax fraud and a violation of labor laws.


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