What to do if i have been misclassified as a 1099 non- employee?

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What to do if i have been misclassified as a 1099 non- employee?

I have worked at a non-profit for 2 years. Although I am not self-employed and have no other job and perform the same functions as my salaried co-workers. My boss holds my pay each period citing she wants my hours submitted in a different format than the previous one ( after the fact) and will not pay me until I comply. Now she is stating I will not get paid for work already performed as she is changing the payroll schedule dates and she will be witholding 2 weeks pay for 2 weeks. I am paid monthly miles (due today) and she states she will now only pay 2 weeks mileage at a time. In effect she is putting me out of 2 weeks pay and mileage previously agreed upon. Is this legal or is she just a bully ?

Asked on March 27, 2012 under Employment Labor Law, Florida

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

1) Whether you are an employee or an independent contractor (e.g. correctly paid on a 1099 basis), you must be paid for all work done, at the then-agreed-upon rates. Certainly, an employer can reduce pay going forward, if there is no employment contract--but if you already did the work, you must be paid for it.

2) Separately from the above, it does not matter what a company calls you, or how they prefer to pay you--if you meet the criteria to be considered an employee, you must be paid and treated as an employee. Or, to put it another way, you are only an independent contractor if you meet the tests to be an independent contractor--otherwise, you are an employee. To see the criteria for being an independent contractor in detail, go to the U.S. Department of Labor website. In brief, an independent contractor is at least somewhat "independent": the contractor has at least some control over hours and location of doing the work; the contractor determines how to do the work; the contractor provides own tools and training; the contractor manages him/herself, and also markets his/her services to potential employers; etc. If in all ways, you act and are treated as an employee, there is a good chance you were misclassified. If you were misclassified and should have been an employee, the employer is potentially liable to you for all amounts you should have received as an employee, including possibly: payment for all hours worked; overtime, if applicable; health insurance, vacation, sick days, pension or 401(k) match if employees at that company receive those things; the employer portion of FICA.

If you think you may have been misclassified, and your employer is also withholding wages and other compensation you earned, you should speak with an employment law attorney to evaluate your rights and recourse.


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