Hi,

I just started working for a law firm. When I and my co-worker started, I was made to understand I would be working 37-40 hrs/week and getting a flat $250 per week. First I was made to wait for 3 weeks before my first check, because I was told that this was how it was done everywhere(I was under the impression it wasn't, and this wasn't my first job). My employer has an outside company cut the checks and calculate the taxes. I was told that all I had to do was provide the information and she would give it to the company(paychex). I have not received any printed form . When I do receive my first check, taxes have been taken out of my check, and for 2 weeks(the first week of which I worked 20 hours, the second of which I worked 51) I received 450 dollars, 380.47 with taxes taken out.

I have since found out from a co-worker that we were referred to as 1099 workers, which I have never heard of. I have been doing some research, but I have questions: We do not set our schedules, have no say in how work gets done, and seem overall to be employees(w-2), not independent contractors(1099). What can we do? I'm stuck! Can she give us below minimum wage?

Please help!

It is extremely unlikely that you are anything legally other then an employee. However if taxes are being taken out of your check, that does not normally happen with an independant contractor. Minimum wage is probably required. If it is not then it is a function of either your specific duties or the nature of your employer's business. If your employer is a law firm, then this does not sound very likely. There are a huge number of exceptions to OT and MW laws. There is a very small chance that you are subject to one of these exceptions but not you have said so far indicates that. One possibility is that if the employer does less then $500K in annual sales and no interstate commerce at all (the 2nd is not very likely), then it is possible that federal laws on OT and MW do not apply to you.
http://www.dol.gov/elaws/esa/flsa/scope/screen9.asp

NY is not my state. Perhaps someone more familar with NY law can jump in about now.

Thank you. Upon asking a lawyer friend, it seems I am a 1099 worker on paper, however I am being treated as an employee. Do I have any legal recourse?

There is no such thing as a "1099 worker" either on paper or off paper. Under the federal FLSA law, all workers are legally either "independant contractors" or "employees". Based on what you have said, you are almost certainly legally an employee. The following is an article discussing the IRS rules on the subject, using the "20 factor" test. Perhaps your lawyer friend has heard of this, seeing how there was a U.S. Supreme Court decision on the subject. Federal DOL still uses a variant of the older Common Law rules, and states do whatever they do. I have never heard of any rule set that would consider you personnally to be an independant contractor based on what you have said.

http://payroll-taxes.com/articles/art2.html