TX - Labor Questions

[Al Jones]

Okay, I'm disgusted.

I work for a company - as contract labor - I've been there for about 10 years, driving a route truck.

0) Would someone point me toward the legal definition of contract labor in Texas, please!

1) Employer says that I'm salaried, pays no overtime, but deducts for days taken off (eg: two days he told us to take off for Rita). Is that right or are we due straight time/overtime?

2) Employer doesn't take any taxes out - but also doesn't file / give us a 1099. Makes it rough to file taxes (I file it as 'income from other sources....') Obviously I can't force him to but what are all the ramifications for me of this situation?

I'm trying to find another job, but stupidity (felony) on my part about 15 years back makes it difficult. Suggestions / guidance??

[Pattymd]

When you say "contract labor", does that mean you are an independent contractor? Do you get a 1099-MISC form? Or are you an employee who has taxes withheld and receives a W-4 form? This is critical to give you a proper response.

[Al Jones]

Thanks for the reply Pattymd.

Originally Posted by Pattymd

When you say "contract labor", does that mean you are an independent contractor? Do you get a 1099-MISC form?

The employer tacks 'contract labor' on each of our checks as his justification for paying no taxes. For all other purposes we're treated as employees. He says that since we're not under his control while we're on the route we're contract employees (his phrase), but he doesn't mind calling us in on our non-route day to wash trucks / change oil / etc.

Originally Posted by Pattymd

Or are you an employee who has taxes withheld and receives a W-4 form? This is critical to give you a proper response.

No w-2 OR w-4 - No end of year papers of any kind. (Further, No I-9 for new employees, no SS card required.)

[Texas709]

Al, if you work as a route driver, you probably have a designated start/stop time, you probably call on the (employer) owner's clients, you probably use his fuel, and are told how you will run the route. You probably can't send someone else in to do your work for you. You probably are an employee. Texas does not specifically define an "independent contractor", but does establish a test for determining whether one is a contractor or employee. It's very similar to that used by the U.S. Dept. of Labor, linked here: http://www.dol.gov/esa/regs/compliance/whd/whdfs13.htm. The actual test used by Texas is located in the Texas Payday Rules, sec. 821.5 of the Texas Administrative Code, at: http://info.sos.state.tx.us/fids/40_0821_0005-1.gif.

At any rate, Texas will accept a wage claim from someone who is unsure of their status, and will make a determination of status as a threshhold question for the claim. That may resolve the issue of any wages due to you for all time worked. If you're salaried/exempt (doubtful), you may not get overtime, but you should be paid for all time worked. If you're non-exempt, you may be entitled to overtime. Texas Workforce Commission can check that out. [If you're not exempt, there is no requirement that you be paid for the evacuation due to Rita--it's not time worked.]

The issue of tax withholding, paying, and reporting is something that you may report to our friends at the Revenue Service--(800) 829-1040. Employers are obligated to report wages, and businesses are obligated to report payments to contractors of over $600 in a year. Additional requirements exist for withholding of taxes, social security, etc. A bonus here is if the guy is charged, you may be in for a share of the recovered amount as a snitch.

It's good you're looking for another job. If you go through with any of the mechanisms available to you, you probably won't have the one you have now. Incidentally, the Texas Payday Law does not protect wage claim filers from retaliation.

Good luck--

[Al Jones]

Thanks.

I think it's time to start getting some ducks lined up. If I read that reference to 'Employment Status - a comparative approach' correctly, then by no stretch of anyones imagination am I a contractor. As you said, I use his vehicle to service his customers on the days he specifies. We have on occasion called in others to perform our jobs (when we drivers have had personal business to attend to which can't be done 'off hours') but they work for and are paid by him, not us.

In between the Rita incident, and another where one of my coworkers was hurt on the job, I've reached a point of no return. It's frustrating to me - because I like everything about what I'm doing, except the person for whom I'm doing it.

I *don't* want to excercise any of my options, but when discussion is futile, I find I'm left with little choice. I'd rather just get another job and go on my merry way but, in my mind, he's fiscally abused his employees for so long that it's time to do something.

Retalliation - there are few things of which I am afraid in that regard, however, if he knew I was even considering any action which might endanger his pocketbook then it would be physical retalliation that would be my primary concern. I'm going to have to walk very lightly on these eggs. This is, after all, Texas.

[Texas709]

OF COURSE IT'S TEXAS--THAT'S WHY WE LIVE HERE!
Good Luck, Al. If you want to maintain anonymity, the feds may be able to do an investigation without informing the employer of who complained. Call the U.S. Dept. of Labor. You'd be better to use the local number if you have one. Check the blue pages of the phone book.

Hook 'em Horns

[Al Jones]

just a little.

One of our workers was hurt a couple of weeks ago (actually he was hurt on his first day). He's gotten a lawyer who has contacted the employer one time. The employer is saying that they can't do anything till he sells the business and has some money. (Ignoring normal monthly income....?)

Common sense says, to me, that since this is his dba any award from the courts could go back on anything he owns (holding out the immediate homestead and one vehicle if I remember correctly). The question is what recourse does one have (either me on an overtime claim, or the injured employee on a workmans comp claim) if the employer simply refuses to pay?

Texas, Love it or leave it! and I've been a transplant here for 27 years now!

[Texas709]

It may be a mistake to apply "common sense" to questions of law or economics. I'm fond of saying that if sense were all that common, why should we be so surprised to find it? Anyway--

If an employer is a sole proprietor (doing bidness as), any lien or judgment may be applied to the assets of the individual, with the normal exclusions for houses, cars, tools, etc. A workers' comp suit judgment has some priority, and a lien filed by the State has priority over all except a lien for ad velorem taxes. The trick is identifying and freezing the assets. In the case of a court order, local constables may be able to sieze some assets, but that's an involved process, also.

If an employer is incorporated (LLC, INC, etc.) the only assets that may be attached are those of the corporation, in most cases. Your recourse, if a claim for wages is upheld, is either through State collection efforts, or through civil proceedings in court. That's one reason that good attorneys make so much money.

"You buys your ticket, You takes your chances."