If I receive a 1099 at my job but my job responsibilities are dictated by the employer, am I entitled to minimum wage when it exceeds my commission?

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If I receive a 1099 at my job but my job responsibilities are dictated by the employer, am I entitled to minimum wage when it exceeds my commission?

I worked as a salon employee on a commission only pay-I was then made “manager” and given 50% commission (also took a 10% commission cut). Except for the first few years when I received a W2, and a year when I was given nothing to file with, I have received a 1099 and paid self-employment taxes. My job requirements far exceed that of an “independent contractor” and always have. Basically, I was told to run the salon as if it was my own. I am expected to work a set schedule, run meetings, hire/fire, run promotions – any and all managerial aspects.

Asked on December 12, 2011 under Employment Labor Law, Illinois

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

From what you write, you may indeed be an employee, not an independent contractor. A person's classification has nothing to do with how the employer wants to pay hims/her and everything to do with his/her degree of independence: independent contractors typically set their own hours, control how they do the job, usually have more than 1 client, provide their own tools, etc., whereas employees work the schedule set by their employer and have their employer dictate or direct how they do their job.

If you have been misclassified, you may be due:

1) minimum wage for any periods you did not receive it;

2) any overtime you should have received, but did not;

3) for your employer to pay the employer share of FICA;

4) possibly for benefits which employees received at work

You should consult with an employment attorney to discuss your case and what you might be entitled to.


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