Hello,

I am confused and need help please?

My boss is telling me that I am a contract employee. I need this job to feed my kids and don't want to get fired, but everything I am reading tells me I am a w-2 employee. The thing that I find just extraordinary is that I have never signed or even seen an agreement/contract. I have signed nothing.

I have to work Monday - Friday 9:00 - 5:30. Typically I work about 7-10 hours of overtime per week. I am paid hourly and do not have a say in how much I am paid. They have me on call on the weekends should a big case come up and if I don't answer my cell on the weekend I "you will be fired" will be fired, this is a direct quote from my boss. They even pay for my cell phone bill.

The first week of my employment I filled out the I-9 and w-4 forms and was given a vacation and Holiday schedule. I have been denied Holiday pay.

I have to use my bosses computer, copier, office and cannot work outside the office, other than going to Client's Homes and Investigating their civil claims for the two lead attorney's in the firm. I use their camera equipment.

I use my car to go to client homes but I am reimbursed for milage, I think it is around 58 cents a mile. I am reimbursed for any expense I might incur, such as payments for Bridge Tolls, Police Reports, Medical Records, Post Office Mailings and Small Claims Filings.

I have to wear a shirt and tie everyday or, "You are fired."

I have to fill out the intake forms just the right way or, "You are fired."

I have to record every telephone call in Abacus or I am fired.

They will only pay me straight time for all my overtime, but if I ask any questions I will be fired.

The boss tells me when and where to go and if the calendar, in the office they provide, is not properly filled out with my daily tasks and I am out of the office, my boss writes these stupid things like, "He must be dead because he ain't in the office and there is nothing written on his calendar, tell his wife I am sorry for her loss."

I have business cards with my bosses logo and my name and position with all the contact numbers for our offices.

Should I expect to get fired if I fill out SS-8 and should I fill out this SS-8 form?

Thanks

Is there something that I said that makes one not reply to my questions?

I am new to this forum so if I breached procedure it is only out of ignorance.

Should I post on some other thread with this issue?

Thanks

This board is staffed by volunteers who do it on their own time. Not everyone who reads a question will always know the answer, and you posted on a holiday weekend. Have some patience, and I'm sure when someone who knows the answer reads your post they will respond. :)

So HAVE you been paid? Were taxes withheld?

This sounds like a nonexempt position to me. And everything you mentioned seem to indicate employee status.

I'm not sure what you're asking.

I can give you parts of an answer. You have some very unrelated issues here.
- There is no such thing as a "contract employee". Legally all workers are either "independent contractors" or "employees". You are apparently suggesting that you are legally almost certainly an employee but are apparently being treated as an independent contractor. I agree. Filing a SS-8 will eventually get a reaction from IRS, but IRS looks out for IRS, not workers. The IRS reaction will be to make sure that IRS is getting the money the IRS feels is due them. This may or may not help your situation, but arguably IRS's intent is not to improve your situation.
http://www.dol.gov/esa/whd/regs/compliance/whdfs13.pdf
http://www.irs.gov/businesses/small/article/0,,id=99921,00.html
- You mentioned overtime. This is something that IRS literally has no interest in. IRS is interested in wage reporting and taxes based on wages paid (or constructively received). IRS is fine with you never being paid anything ever as long as when you are paid they get their cut. Arguably CA-FTB has the same viewpoint as IRS. However federal and state DOL have a different viewpoint. They enforce the overtime rules. In CA's case you could file an overtime wage claim with CA-DLSE, who is also interested in the worker classification issue and whose interests are arguably more similar to yours. It is in CA-DLSE's interest to classify you as an employee and see that you are paid overtime if possible.
- Which brings us to your last issue, that of termination. Unfortunately termination law is not only very complicated but not primarily something that DOL has much interest in and IRS certainly has no interest in. There are indeed certain "public policy" rules both at the federal level and in CA that are designed to protect the employee from wrongful terminations related to the filing of wage claims or claims that a worker mis-classification has occurred. However often this means that the employer will simply manufacture an unrelated reason why the termination occurred. I am not saying that you have no recourse, but I will suggest that recourse is less then certain and that termination related issues really need to be discussed with a local attorney. It can often be useful to do this around right now prior to being terminated while all options are still available. Past that termination law is too complicated for any short simple answers to be very useful. In comparison, both worker classification and unpaid overtime are much easier issues with fairly obvious mechanical means of resolution available.

So HAVE you been paid? Were taxes withheld?

This sounds like a nonexempt position to me. And everything you mentioned seem to indicate employee status.

I'm not sure what you're asking.




I have been paid on scheduled pay days on the 1st AND 15th of each month. Taxes have not been withheld...I would receive two personal checks....one check for hourly work (no overtime where I thought I deserved it)...and one for mileage and expense reimbursements.

To answer your question, No, taxes have not been withheld. I claimed 3 on my tax withholding form that I filled out the first week I started.


Thank you for all your help!!!

I can give you parts of an answer. You have some very unrelated issues here.
- There is no such thing as a "contract employee". Legally all workers are either "independent contractors" or "employees". You are apparently suggesting that you are legally almost certainly an employee but are apparently being treated as an independent contractor. I agree. Filing a SS-8 will eventually get a reaction from IRS, but IRS looks out for IRS, not workers. The IRS reaction will be to make sure that IRS is getting the money the IRS feels is due them. This may or may not help your situation, but arguably IRS's intent is not to improve your situation.
http://www.dol.gov/esa/whd/regs/compliance/whdfs13.pdf
http://www.irs.gov/businesses/small/article/0,,id=99921,00.html
- You mentioned overtime. This is something that IRS literally has no interest in. IRS is interested in wage reporting and taxes based on wages paid (or constructively received). IRS is fine with you never being paid anything ever as long as when you are paid they get their cut. Arguably CA-FTB has the same viewpoint as IRS. However federal and state DOL have a different viewpoint. They enforce the overtime rules. In CA's case you could file an overtime wage claim with CA-DLSE, who is also interested in the worker classification issue and whose interests are arguably more similar to yours. It is in CA-DLSE's interest to classify you as an employee and see that you are paid overtime if possible.
- Which brings us to your last issue, that of termination. Unfortunately termination law is not only very complicated but not primarily something that DOL has much interest in and IRS certainly has no interest in. There are indeed certain "public policy" rules both at the federal level and in CA that are designed to protect the employee from wrongful terminations related to the filing of wage claims or claims that a worker mis-classification has occurred. However often this means that the employer will simply manufacture an unrelated reason why the termination occurred. I am not saying that you have no recourse, but I will suggest that recourse is less then certain and that termination related issues really need to be discussed with a local attorney. It can often be useful to do this around right now prior to being terminated while all options are still available. Past that termination law is too complicated for any short simple answers to be very useful. In comparison, both worker classification and unpaid overtime are much easier issues with fairly obvious mechanical means of resolution available.



I see that this is quite involved and I really need to speak with an employment attorney. I didn't even think about the IRS mob mentality. Reminds me of the movie GOODFELLAS, "Have a bad week, too bad pay me."

I have made an appointment with an Attorney....but he is defense and he comes highly recommended....he is giving a free consult because of the referrals my friend gives him on a monthly basis....should I ultimately seek a Plaintiff's side Employment Attorney? If so, any recommendations on an Employment Attorney in Yolo County or as far as Sacramento County if need be?

The rules of this website prohibit making recommendations for specific attornies. I can say that if you look at the attorney's website you want to see the phrase "labor law". Not all attornies know much (or anything) about this specialty area of the law. Past that, I would not worry about the "defense" vs. "plantiff side" attorney. Attornies will work for anyone who pays them. I have worked for some pretty big companies who tended to use large national labor law firms. However I have seen the same large national labor law firms on the employee's side of some cases, so I would be pretty comfortable that lawyers fight for whoever is paying them.

I am an employer in CA. I had an independent contractor file for unemployment, which caused a state payroll audit. My "independent contractor" worked hourly, out of my office, on my equipment, under my business name. All these things = EMPLOYEE. I learned the hard way. From what you have stated, you are an employee, not IC. If I ever hire an IC again, they will have to Have their own business license and operate under their business name, set their own hours, use their own business cards and equipment. For now, I hire employees and pay all the taxes that go along with.

EVAUSA,

Thanks for the candid response and sharing the lesson learned. I hope business is going good for you! Happy New Year!!