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Not salaried but W-2 issued ? Florida

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  • Not salaried but W-2 issued ? Florida

    I am an outside salesperson in Florida and am paid on a strictly commission only basis. However costs for health insurance is deducted from my paycheck and I am issued a W-2 at the end of each year. I thought that if I was not salaried I should be on income should be on a 1099 form.

    I am required to be on call certain hours of everyday and must attend meetings whenever they are held at the office or elsewhere.

    I'm not sure if I am classified as an idependent contractor, a salaried exempt employee or what. The company always says that we are not employees.

  • #2
    "Salaried" is merely a pay method. "Commission only" is merely a pay method allowed for outside salesperson-employees ONLY. The fact that you are eligible for insurance through the employer is a HUGE factor in determining that you are an employee, not an IC. Are you saying that you're covered under the group insurance plan, but taxes are not being withheld?
    http://www.irs.gov/taxtopics/tc762.html
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    • #3
      Taxes are taken out

      Yes taxes are withheld from my pay and yes, I am on the group insurance plan for which thw company shares the cost.

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      • #4
        One more question. What do you sell?
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        • #5
          I sell wines and spirits on premise to restaurants,bars/lounges,country clubs,etc. The company I work for is one of the 3 major distributors in this area.

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          • #6
            OK, there were a couple of exceptions I was thinking of, but they don't fit here. A W-2 is correct, except that the employer needs to be deducting Federal Income Tax, FICA and Medicare taxes. They can't have it both ways. If you're an employee, taxes must be withheld and you get a W-2. If you're an independent contractor, taxes are NOT withheld and you get a 1099-MISC.

            You can report them to the IRS if you like. Or better yet, complete and send in this form to the IRS and get their determination first, THEN present it to the employer.

            In the meantime, start making estimated tax deposits. *sigh*
            Last edited by Pattymd; 09-29-2008, 11:15 AM.
            I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

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            • #7
              I'm afraid you didn't read the former post correctly. I said that they are withholding taxes.

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              • #8
                Originally posted by Pattiscott View Post
                I'm afraid you didn't read the former post correctly. I said that they are withholding taxes.

                You're right I didn't. My mistake.

                Then, they're good.
                I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

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                • #9
                  What is salaried exempt employee? Does that mean you are an employee with out the benifits of hourly wages,overtime and sick pay?

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                  • #10
                    An exempt employee is one who meets the criteria in one of the classifications here:
                    http://www.dol.gov/esa/whd/fact-sheets-index.htm
                    Exemption for Executive, Administrative, Professional, Computer and Outside Sales Fact Sheet 17A


                    Employees who meet the criteria for outside salespersons do NOT have to be paid a salary under the FLSA. That doesn't make the worker any less an employee.
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                    • #11
                      So your are saying based on the information I gave you that I am classified as an employee? But possibly an exempt employee. This status requires that my wages be reported on a W-2 not a 1099?

                      As an exempt employee they can make me work as many hours as they want and go to as many meetings as they want and never pay me overtime.

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                      • #12
                        You are an employee; you get benefits, have taxes withheld, get a W-2.
                        You are an exempt employee. As such, you are not entitled to any additional pay for "extra hours". One of the things exempt means "exempt from" is overtime pay.
                        You are an exempt employee under the outside sales classification. As such, there is NO salary requirement, period.

                        So, that's what I'm saying.

                        Your employer is acting in compliance with the law.
                        Last edited by Pattymd; 09-29-2008, 12:00 PM.
                        I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

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                        • #13
                          Thank you so much for the clarification. I just thought they were cheap!Could be both...

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                          • #14
                            Could be.
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                            • #15
                              Originally posted by Pattiscott View Post
                              As an exempt employee they can make me work as many hours as they want and go to as many meetings as they want and never pay me overtime.
                              While I agree with most of what was said, I would like to pick a small nit (sorry about that). One of the requirements of the Outside Sales exemption is that you actually spend the majority your time out trying to sell things. A few meetings or other activities is not a big deal, but arguably if (for example) you work 50 hours a week, but spend 30 hours a week in meetings or other office bound activities, then you just failed the exemption. So "as many meetings as they want" is not necessarily true.
                              "Reality is that which, when you stop believing in it, doesn't go away".
                              Philip K. **** (1928-1982)

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