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  • Need Help on a question desperately Massachusetts

    Hello all,

    I'm new to the forum and nice to meet you all. I have question I need answered desperately-----hopefully someone can help me.

    I am employed in Massachusetts, but work and live from a home / office in FL.
    I have been working on a salary for over a year W2'd.
    My boss just informed me that he is taking me off salary and putting me on a commission only basis, and I would become a 1099 independent.

    If that were to happen, I'd have no income as sales are horrible and there would be no commission. Its essentially a polite death sentence AND a complete change in employee status.

    In a nutshell:
    If this happens, can I qualify for unemployment benefits?

    Can that be forced by an employer?

    I don't know the laws concerning this.

    I appreciate any help on this in advance to all!
    Thank you and kind regards,
    Mass

  • #2
    If you don't meet the criteria for IC status, then the employer would be violating a number of laws.

    What exactly do you do and what type of business (not its name) do you do it for?
    I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

    Comment


    • #3
      Originally posted by Pattymd View Post
      If you don't meet the criteria for IC status, then the employer would be violating a number of laws.

      What exactly do you do and what type of business (not its name) do you do it for?
      Hi Patty,

      Thanks so much for replying and nice to meet you.
      I work for him from my home office as an employee (W2 status)
      I am a national sales rep. and the "type" of business I do it for would be classified as a trade show management company.
      I look forward to hearing back from you.

      Kind regards, Mass Ps: What is IC status?

      Comment


      • #4
        Independent contractor. Generally speaking, even outside salespersons are employees.

        A good place to start would be here:
        http://www.irs.gov/taxtopics/tc762.html

        IF you would not meet the criteria for an independent contractor and IF you are fired because you refuse to accept IC status, you MIGHT be eligible for UI benefits because of "good reason attributable to the employer" in that your working conditions will have substantially changed. Before you make any decision, however, it might be worth a discussion with an attorney versed in employment law.

        Do you perform your services in Florida or Massachusetts? Where you perform the services (or, if the services are performed in multiple states, where your "home base" is) is the state law that would apply.
        Last edited by Pattymd; 04-22-2009, 04:03 PM.
        I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

        Comment


        • #5
          Originally posted by Pattymd View Post
          Independent contractor. Generally speaking, even outside salespersons are employees.

          A good place to start would be here:
          http://www.irs.gov/taxtopics/tc762.html

          IF you would not meet the criteria for an independent contractor and IF you are fired because you refuse to accept IC status, you MIGHT be eligible for UI benefits because of "good reason attributable to the employer" in that your working conditions will have substantially changed. Before you make any decision, however, it might be worth a discussion with an attorney versed in employment law.

          Do you perform your services in Florida or Massachusetts? Where you perform the services (or, if the services are performed in multiple states, where your "home base" is) is the state law that would apply.
          Well thank you for that Patty.
          To answer your question, I perform my services from my home office in FL.
          Our company headquarters is in Mass.
          I call folks all over the country, but as you said, my "home base" is in Mass.

          I certainly am not of IC status, as I am an official employee who is W2'd with all the normal tax withholding's taken out of my check for a year now.
          I am not being "fired", just forcefully told that my salary will now be taken away, and he wants me to work off of 100% commission.
          I agree...not only have my working conditions changed, but my entire employee status would be changed from an employee to an IC..(forced)

          He has other IC's that work for him, but I am not one of them, nor was I hired on that premise.

          Something seems wrong to me with that picture, no?

          Thanks so much for your help!
          Mass
          Last edited by Mass; 04-22-2009, 04:17 PM.

          Comment


          • #6
            Wait a minute. If you live in Florida, and work out of your home, then Florida is your "work state" and Florida law would apply. Where is company is headquartered is, in this case, irrelevant.

            Outside salespersons CAN be paid commission only. That would not make you an independent contractor. It would only make you an exempt employee that does not require a fixed salary. See here for the criteria for the outside sales exemption.
            http://www.dol.gov/esa/whd/regs/comp...tsidesales.pdf

            Again, however, if you are "forced" to be reclassified as an independent contractor, and IF you do not meet the criteria for an independent contractor, see an attorney before you agree or quit.
            I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

            Comment


            • #7
              I question the outside sales commission only as this person indicated he calls people all over the country from his home office. I thought outside sales was door to door or client to client.

              Comment


              • #8
                Originally posted by gabbygirl View Post
                I question the outside sales commission only as this person indicated he calls people all over the country from his home office. I thought outside sales was door to door or client to client.
                Good catch, gabbygirl, I missed that.
                I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

                Comment


                • #9
                  Originally posted by gabbygirl View Post
                  I question the outside sales commission only as this person indicated he calls people all over the country from his home office. I thought outside sales was door to door or client to client.
                  Hello again,

                  Very true. I don't ever leave my home office for anything at all.
                  I called the MA and FL UI offices today, and they said they could not legally give me an answer if it qualifies over the phone, because you have to file first, then the assessment board determines if you are eligible or not.

                  I will say though, the woman I spoke to in the MA office did say in her opinion, that I am being forced into a position I was not hired for. She felt adamant about that.

                  The MA office said since I work from home in FL, that I have to file in FL, but told me that she wasn't familiar with FL UI laws. The FL office told me I could most certainly file in MA, and even went on to say that MA pays more than FL bene's, and was helpful in tipping me off that way. (Still confused on that one, but I'll file in MA)

                  Now.........the only issue is that my boss "bucks" people who try to claim unemployment. He has a HIGH turn over rate, and most don't make it the 6 months required to claim. I sure hope this is not a fight.

                  I spoke with him this morning and he said he wasn't firing me or laying me off, but simply curtailing my salary on May 12th, 2009, and was putting me on flat out commission. He said to think about it and if I feel it won't work out for me he would understand if I had to..."Oh, well you know..."
                  Nice, huh?

                  The MA UI contact actually agreed and said that a situation such as that is simply polite financial suicide, for lack of a better term.
                  I'm so not looking for this to turn into a battle. My own wife works for him as well for the last 10 years...ugh.

                  Any further advice or thoughts welcomed!

                  You folks are great and thank you,
                  Mass
                  Last edited by Mass; 04-23-2009, 01:29 PM.

                  Comment


                  • #10
                    I wouldn't count on receiving benefits in MA if you live in FL and work out of your home there. Any payments made on your behalf will have been paid to FL, not to MA.

                    Of course the FL guy encouraged you to file in MA. That would be one less claim he would have to process.
                    The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

                    Comment


                    • #11
                      Originally posted by cbg View Post
                      I wouldn't count on receiving benefits in MA if you live in FL and work out of your home there. Any payments made on your behalf will have been paid to FL, not to MA.

                      Of course the FL guy encouraged you to file in MA. That would be one less claim he would have to process.
                      I can't seem to get a concise and simple answer on this one simple issue..where to file.

                      I asked the MA agent WHY I had to file in FL, and she said it is because I worked a previous job in FL before I started this current job, and due to the last quarter of my former job that would be figured into the fiscal year, I am entitled to that last quarter. She actually went into details, telling me that I would have to file a "Combined Wage claim; FL against MA"

                      I told this to the FL agent, and he concurred with the "Combined Wage claim; FL against MA" as I am due the benefits for the full fiscal year, but NO ONE seems to know where I should file.

                      TWO full hours on the phone and MA says file in FL and FL says file in MA.
                      Where the heck do you go from there?

                      All the best,
                      Mass
                      Last edited by Mass; 04-23-2009, 01:45 PM.

                      Comment


                      • #12
                        File a wage claim in FL. It works or it does not.

                        I am not really surprised that you got run around on the telephone. In my experience, governmental employees who answer the phones and give advise rarely know what they are doing. It is likely that the people you are talking to are supposed to "help" as many people as possible each hour and handing you off to some one else lets them get to the next call. (Does not solve your problem of course).

                        Governmental employees who actually know what they are doing work from a desk and stay very busy. They do not answer phones.

                        -----

                        From a payroll standpoint, if you were working in 100% in FL, that your employer should have filed your wages as a FL employee on the FL quarterly tax return. This is not remotely an issue. Both FL and MA are signatures to the Interstate Reciprocal Coverage Agreement which spells out what "The State" that SUTA wages gets reported to.

                        A possible problem is that if you are the only FL employee there is a real chance that your employer lied and reported your wages to MA. This is not legal, but not that uncommon. Your only real recourse is to just file with FL UI and let the two states fight it out. If things are messed up, there is a zero percent chance that someone is going to fix it over the phone. File the UI claim in FL and get the ball rolling now. The longer you wait, the longer it takes to get things fixed.
                        "Reality is that which, when you stop believing in it, doesn't go away".
                        Philip K. **** (1928-1982)

                        Comment


                        • #13
                          There was a recent TV news story here in MA, about all of the out of state workers filing for benefits here, as MA pays more and longer.

                          According to the news story, you can file unemployment in any state you choose. I believe it was under the Interstate Benefit Plan (?). I was so shocked to hear it, I don't recall all the details, but it mentioned people in, I want to say Kentucky filing here. MA gives them their benefits and bills Kentucky for it.

                          Comment


                          • #14
                            Originally posted by Road Warrior View Post
                            There was a recent TV news story here in MA, about all of the out of state workers filing for benefits here, as MA pays more and longer.

                            According to the news story, you can file unemployment in any state you choose. I believe it was under the Interstate Benefit Plan (?). I was so shocked to hear it, I don't recall all the details, but it mentioned people in, I want to say Kentucky filing here. MA gives them their benefits and bills Kentucky for it.
                            Boy that is great news to hear....
                            Now if I could only corroborate that fact somehow.
                            I have until May 12th. until I file.
                            It still behooves me that neither could give a definitive answer.
                            The MA UI agent even took my SS# and her computer showed that my taxes were paid in MA from my paycheck.

                            These days, so many people are working from home offices while the employer is in another sate...the latest trend being execs from enterprise companies, to facilitate downsizing.....and they are getting laid off by the thousands.

                            If my taxes were paid in MA you would think MA would be the state you would claim in.

                            Again..thanks to all for the efforts here.

                            Comment


                            • #15
                              Originally posted by Mass View Post
                              Boy that is great news to hear....
                              Now if I could only corroborate that fact somehow.
                              Sounds like the woman you spoke to in FL knows about it.

                              Like I said, I was so shocked to hear it. Start with this:


                              http://74.125.93.132/search?q=cache:...gl=us&ie=UTF-8

                              Comment

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