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

UPDATED: Sep 30, 2022

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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


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 6 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.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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