Hello..

This is the wife of poster Proximatecause...

He is at work currently and there has been a 'development' that concerns what he wrote about in a thread he posted a few weeks back entitled "What to Do? California?"

The initial concern involved my husband's employer mis-classifying him as an Independent Contractor when he really is in fact a Regular Employee. An attorney & IRS Form SS-8 confirm he is in fact an 'Employee'.

Today his employer has passed out W-9's to all his mis-classified'contract' employees.

Altho' we plan to meet again with the same attorney we consulted with initially about this, we would appreciate any opinions any of you might have about what we could do next - at the very least to protect our interest - as we don't know when he'll be able to consult with us next.

If you are wondering why we haven't just hired the attorney already, we were still deciding what we wanted to do as we have 2 small children and want to minimize the burden on our family. The concern is that likelihood of my husband being fired is great & that means un-employment, the resultant pay-cut and all those things that a pay-cut would affect.

Is there anything anyone might suggest in light of this development? I haven't been able to speak with my husband so I don't know what time-frame his boss is giving him to turn in the W-9 but I suspect when my husband refuses (that's what I'm thinking we'll do) that he'll be fired. We'd like to be as prepared as we can, as SOON as we can, so any opinions would be appreciated.

Just to clarify we realize that all responses are NOT to be considered as 'legal advice'. :)

Thanks in Advance....

Proximatecause's Wife

What does he "get" or not get if he completes it? Anything? I don't see any upside to completing it. I do see a downside, namely, it would be one indication in an audit/investigation that your husband knew or should have known that he was being treated as an IC and that he agreed to it (although his agreement, in most cases, doesn't have any legal impact).
Sounds like the company is trying to cover its tail. :mad:

While I agree with what Patty says, I am skeptical that completing a W-9 by itself will materially protect the company from the worker being reclassified by the government to an employee. From the employer side of things, the only thing the W-9 accomplishes is to protect the employer from the backup withholding requirement. I am in complete agreement that any employer should get W-9s from all vendors, but the notion that signing the W-9 turns someone who would otherwise be an employee into an independant contractor is seriously flawed.

Has the SS-8 form actually been sent to IRS yet? Technically it is not the form that make someone an employee but IRS reviewing the form and making a decision that does. It might be worthwhile to send the form into IRS along with a statement that the employer is giving a complete this W-9 form or else order. And if the worker is in a "sign this form or be terminated" situation, then arguably signing the form might make sense.

I think a meeting with the employer and your attorney or your employers attorney are in order. Bring your employer a "bill" for all of the additional taxes you paid, and seek additional compensation for any overtime, interest and attorney fees that you are paying to enforce proper classification. In addition, if your husband actually is an employee and not an IC, the employer has deprived him of his social security and disability benefits and placed him at risk by failing to cover him with workers comp insurance.

This should be motivating to the employer in that the alternative is your husband seeking relief from the tax authorities, labor board, and or private labor attorney which will likely have more grave consequences.

And if the worker is in a "sign this form or be terminated" situation, then arguably signing the form might make sense.

I do agree with that. Probably isn't going to be worth a hill of beans anyway, once the determination is made.

What does he "get" or not get if he completes it? Anything? I don't see any upside to completing it. I do see a downside, namely, it would be one indication in an audit/investigation that your husband knew or should have known that he was being treated as an IC and that he agreed to it (although his agreement, in most cases, doesn't have any legal impact).
Sounds like the company is trying to cover its tail. :mad:

Hi Pattymd..

Good point, of course... I imagine we hesitate to have him fill out the W-9 because we don't know all the implications of doing so... For instance, if it would indicate he was in agreement with the employer classifying him as an IC. From your post & others it's sounding like filling it out will not matter so we may do so, just to avoid him being fired.

To ALL..

Of course we knew something was up..

A little background might help you clarify our state of mind/intentions...When my husband was hired on he was told that in 3 months, if he did well at his work, he would be put on salary, (vs. hourly) & be given benefits. It was a 'trial' period. He was never hired on as an IC, he filled out a W-4, and at least according to the law (all questions on the SS-8) he doesn't qualify in any way as an IC.

After 3 months he asked about his benefits & being put on salary & was told 'on your next check' we'll take care of everything (he passed the trial period). Well this was 9 months ago or so!

We haven't pressed the issue because it took FOREVER for my husband to get this job, our unemployement ran out (no extension) and we were desperate for work. I think this is the case with many of the employees there. And as I mentioned we have 2 little ones..I need not go into the unemployement rate, condition of the economy, etc.. right? His boss has threatened firing him NUMEROUS times and for such things that I'm POSITIVE the gov't would still pay unemployment as the firing would NOT be justified. His boss is just some sick control freak.

We are honest hardworking people and had no intention of avoiding taxation, etc.. We planned/plan to pay our share of taxes. Once we realized the full implications of his boss claiming he was an IC (that we'd have to pay EMPOYER'S portion of taxes) that's when we were like 'heck NO!'..

We just want what is FAIR.

We haven't benefitted in ANY way to have been (mis)classified like this.. Even tho' taxes haven't been taken out, we will STILL be paying them as we planned to. We haven't received OT pay, the benefits for our family that were promised, the Holiday Pay..

And YES Pattymd-- you hit the nail on the head.. What is boils down to is the employer is trying to cover his tail........ We were wondering how in the HECK he was planning on getting away with this....

An interesting suggestion was made by a friend of a friend saying we should go ahead and allow the classification of IC as the tax benefits (several exemptions apply we are told) would outweigh what we'd pay as far as employer's share of taxes... I don't know if this is true and because we are honest people, I don't know if this is something that is kosher..

Any thoughts?

Oh boy... My husband just called asking for the phone number of the attorney as 'something went down' at work just a bit ago.. Don't know what it was/is but I have to hold off on responding to the other posts just for now.

Thanks kindly to ALL who replied.. We are very grateful & we will definitely post as soon as possible with updates/replies.

Wife of PC

Edited to add that the reason he was on unemployment PRIOR to this current job is that his previous employer retired, so there was no more work for my husband. He was NOT fired.

And YES Pattymd-- you hit the nail on the head.. What is boils down to is the employer is trying to cover his tail........

Sometimes I get lucky! ;)

Sometimes I get lucky! ;)

:D Thanks again for your input....

While I agree with what Patty says, I am skeptical that completing a W-9 by itself will materially protect the company from the worker being reclassified by the government to an employee. From the employer side of things, the only thing the W-9 accomplishes is to protect the employer from the backup withholding requirement. I am in complete agreement that any employer should get W-9s from all vendors, but the notion that signing the W-9 turns someone who would otherwise be an employee into an independant contractor is seriously flawed.

Has the SS-8 form actually been sent to IRS yet? Technically it is not the form that make someone an employee but IRS reviewing the form and making a decision that does. It might be worthwhile to send the form into IRS along with a statement that the employer is giving a complete this W-9 form or else order. And if the worker is in a "sign this form or be terminated" situation, then arguably signing the form might make sense.

Hi DAW...Thanks for your thoughts (1st paragraph)... I especially agree w/that last sentence..

Re: the SS8 we haven't sent it in... We are still really wondering what the heck to do right now... We have calls in to 2 attorneys (the 1st one who is a employer defense atty who reviewed our case but said he'd be better off sticking to the side he usually works) and the Prosecuting atty he referred us to.. We haven't heard back from either yet....

I still don't know what the 'development' is at work... My husband's not at liberty to speak right now...

We really want to do the right thing and what is in our best interest.. We're not out to scr*w the employer or anything, but we don't want to bend over either - if u get my drift..

Would still appreciate any thoughts on whether we might be able to just 'reclassify' (for lack of a better word??) my husband as an IC (this just doesn't seem 'right'..??) and have the tax exemptions off-set the taxes we'd pay on behalf of his employer.. Again, this just doesn't seem a legit option tho'.

I think a meeting with the employer and your attorney or your employers attorney are in order. Bring your employer a "bill" for all of the additional taxes you paid, and seek additional compensation for any overtime, interest and attorney fees that you are paying to enforce proper classification. In addition, if your husband actually is an employee and not an IC, the employer has deprived him of his social security and disability benefits and placed him at risk by failing to cover him with workers comp insurance.

This should be motivating to the employer in that the alternative is your husband seeking relief from the tax authorities, labor board, and or private labor attorney which will likely have more grave consequences.

Thanks for your input CAO...

This is sounding like the best course of action at this point... No matter what we do, we are getting bitten in the as* so we might as well seek all that the law will allow... Other than what was promised (benes, OT, holiday pay) we were seeking nothing other than to NOT pay THEIR taxes....

Hopefully we'll hear from our attorney soon...

Again, thank you for your time...

Hello..

This is the wife of poster Proximatecause...

He is at work currently and there has been a 'development' that concerns what he wrote about in a thread he posted a few weeks back entitled "What to Do? California?"

The initial concern involved my husband's employer mis-classifying him as an Independent Contractor when he really is in fact a Regular Employee. An attorney & IRS Form SS-8 confirm he is in fact an 'Employee'.

Today his employer has passed out W-9's to all his mis-classified'contract' employees.

Altho' we plan to meet again with the same attorney we consulted with initially about this, we would appreciate any opinions any of you might have about what we could do next - at the very least to protect our interest - as we don't know when he'll be able to consult with us next.

If you are wondering why we haven't just hired the attorney already, we were still deciding what we wanted to do as we have 2 small children and want to minimize the burden on our family. The concern is that likelihood of my husband being fired is great & that means un-employment, the resultant pay-cut and all those things that a pay-cut would affect.

Is there anything anyone might suggest in light of this development? I haven't been able to speak with my husband so I don't know what time-frame his boss is giving him to turn in the W-9 but I suspect when my husband refuses (that's what I'm thinking we'll do) that he'll be fired. We'd like to be as prepared as we can, as SOON as we can, so any opinions would be appreciated.

Just to clarify we realize that all responses are NOT to be considered as 'legal advice'. :)

Thanks in Advance....

Proximatecause's Wife see answer in this string..