How long does an employer have to give a paycheckto a1099 employee?

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How long does an employer have to give a paycheckto a1099 employee?

I was hired as a property manager for a management company. I was told my paydays would be the 5th and the 19th. Every “payday” I do not receive a check, I have to ask for days and weeks to get my paycheck. What’s the law on this? Also, they told me I was 1099 but they set my hours and what time I must be there (just like an employee).  If they tell me to be there 9-5 everyday like a regular employee but tell me I’ll be fired if I’m not there, how is this an independent contractor job? Are they skirting the law? They won’t answer me now.

Asked on September 22, 2011 under Employment Labor Law, California

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

Two very different issues:

1) First, there is NO such thing as a "1099 employee." Either you are an independent contractor (who gets a 1099, not a W-2, to record payments, taxes, etc.) or you are an employee--you can't mix the two. Furthermore, in determining whether you an independent contractor or an employee, it doesn't matter what they call you, or what paperwork you  receive; what matters is the reality of the job. If you go either or both of the IRS and DOL websites, you can find information about the criteria to be an independent contractor: in brief, and to oversimplify, an independent contractor IS independent--he or she sets his or her own hours and location of work, determines how to do the job, typically has more than one client, does his or her own marketing and provides his or her own equipment, etc. If you are having to work onsite, 9 - 5, and the company can direct how you do your job, you are probably an employee.

If you are an employee, the company has to pay your share of FICA; has to pay overtime, if applicable; and may owe you benefits. If you think you have been misclassified, you should speak with an employement attorney about what you may be entitled to.

2) If someone is legitimately an independent contractor, then the law does not say when they get paid--it's all as per the contract or agreement between the contractor and the company.


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