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Company operations - not sure if it is a legal issue California

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  • Pattymd
    replied
    You have the right, but they don't have to comply. This would be true even if they were classifying you correctly. Thing is, if you're going to claim that you have been misclassified, you need to act like an employee. See where I'm going?

    Leave a comment:


  • techiedork
    replied
    Thank you - all that info helps. I will definitely look into all my options.

    Now, I have one other question - today in our 9am meeting, they said that they are going to start 15 minutes earlier, which means they want us here 30 minutes earlier than originally told to me when I was hired. This pushes our work day to 8:45am - 7pm (10hrs 15min). Do I have the right to then say that I would like to be off 15 minutes earlier at the end of the day to make up for the 15 minutes they are adding to our day? Since they insist on paying me as a 1099 employee, don't I have that right?

    Thank you!

    Leave a comment:


  • Betty3
    replied
    Originally posted by Alice Dodd View Post
    Just ignore me.
    Ok, we will.

    Leave a comment:


  • Alice Dodd
    replied
    You're right, my bad. I was confusing IC with piece work. Just ignore me.

    Leave a comment:


  • DAW
    replied
    I am going to include pointers to the IRS and federal DOL rules on worker classifications. While the points you raise are valid, and indicative of an employee classification, technically the decision is a function of looking at all of the testing criteria, and not just picking out one or two points that seem to support a particular position.

    http://www.dol.gov/esa/whd/regs/compliance/whdfs13.pdf

    http://www.irs.gov/businesses/small/...=99921,00.html

    I have never seen a straight forward worker classification test issued by CA-DLSE. You can read their manual, but that is basically a whole chapter.

    There are complications. There are a lot of strange worker classification decisions. Perhaps the most problematic is the "safe harbor" provisions covered by Section 530 of the Revenue Act of 1978. This recognizes an exception for ‘‘a long-standing recognized practice of a significant segment of the industry’’. The General Accounting Office issued a recent report to Congress saying that the current use of the Section 530 exceptions is vastly overused and the related law needs to be corrected. Along with many other problems related to worker classification.

    Of course this is IRS only. Not federal DOL. Not CA-DLSE. A worker can be legally considered an employee by IRS but an independant contractor by federal and/or state DOL. Or visa versa.

    So basically there is one of two possibilities. Your employer is wrong, or your employer has really good lawyers who think that they can make the Section 530 or some other exception work. This is really technical stuff. Something that would take a $500/hour attorney who specializes in this **** many hours to figure out. You can file the SS-8 with IRS, or find a cause of action to require federal or state DOL to look at the situation.

    Point of fact, no one on this website has a clue what reason the employer is using to justify their actions. Most of the time the employer does not have a legal justification, but sometimes they at least have fig leaves to hid behind.

    I am not saying to not take legal action, but sometimes the best solution should include finding a better employer.

    Leave a comment:


  • Betty3
    replied
    Besides the reporting of it to the IRS, you can file a complaint with the DLSE.

    Leave a comment:


  • techiedork
    replied
    Originally posted by Betty3 View Post
    The FLSA's minimum wage and overtime requirements don't apply to independent contractors.
    But, what happens if they are treating us as independent contractors illegally? I don't believe that the state would agree that we are ICs (mandated hours, work space, work tools, etc). Am I wrong about this?

    Leave a comment:


  • Betty3
    replied
    The FLSA's minimum wage and overtime requirements don't apply to independent contractors.

    http://labor-employment-law.lawyers....-the-FLSA.html

    Leave a comment:


  • DAW
    replied
    Originally posted by Alice Dodd View Post
    BTW, ICs CANNOT be paid less than minimum wage.
    Why?

    I am in agreement that it is likely that these workers are most likely employees. But for the sake of discussion, let's say that the workers are really IC. My understanding is that minimum wage is part of the federal FLSA specific to employee. My understanding that IC are completely outside of labor law, and subject to contract law only. I am certainly willing to learn, and am prepared to be shown wrong.

    May I ask for your citation that IC are subject to the minimum wage law at either the federal or state level?

    Thank you.

    Leave a comment:


  • Alice Dodd
    replied
    Sounds like the "employees" are misclassified as Independent Contractors". A lot of employers like to do this to avoid paying taxes etc. Check out the IRS SS-8 pamphlet on the IRS site - it explains the difference between ICs and Employees. BTW, ICs CANNOT be paid less than minimum wage. But it soulds like your workers are really employees.

    http://www.irs.gov/businesses/small/...=99921,00.html

    Leave a comment:


  • Company operations - not sure if it is a legal issue California

    Hi,
    I work at a private TV production company who pays all their employees 1099, although they mandate our hours (Our work days are 9am-7pm with a 1 hour lunch) and supply us with office space and computers.

    Furthermore, they require some people to work overtime and extra days (6th and 7th days) without paying them for extra days worked, stating it is part of their package, although there is no paperwork signed that states that this is the case. One employee, for example, has been told he has to work 7 days this week, 10 hours a day. Given his daily rate, if he works over 5 days, he will fall under the state minimum wage.

    And obviously, if an employee doesn't work on any given date, the company does not pay them for that missed day, but if they work extra days, they don't get paid for that, either.

    I was brought on as a supervisor and am very uncomfortable working in this situation, both legally and morally. I don't want to be in a position where I could be liable for anything (if that is even an issue), but I also refuse to ask any employee to work extra hours or days if the company will not pay them. Am I protected against retailiation from my employer if I refuse to ask someone to work extra for no pay?

    Any insight is greatly appreciated. Just wondering if they can legally pay us 1099 in this situation and what to do about the overtime issues.

    Thank you for your assistance.

    -Techiedork
    Last edited by techiedork; 09-17-2009, 04:15 PM.
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