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1099 Mandatory Break-in-Service?

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  • 1099 Mandatory Break-in-Service?

    Is there a maximum amount of time that a 1099 subcontractor may work in the state of Florida without a break in service?

    Thanks,

    Claudia

  • #2
    Short answer is "no". In theory, an "independant contractor (IC) is a vendor, not a person. Vendors have no labor law rights what-so-ever. It is sort of like asking how many hours can Sears be expected to work without a break.

    Which begs the question is the worker correctly classified as an IC in the first place.
    http://www.dol.gov/esa/whd/regs/compliance/whdfs13.pdf
    "Reality is that which, when you stop believing in it, doesn't go away".
    Philip K. **** (1928-1982)

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    • #3
      You'll probably have to use this link:

      http://www.dol.gov/whd/regs/compliance/whdfs13.pdf
      Too often we underestimate the power of a touch, a smile, a kind word, a listening ear, an honest compliment, or the smallest act of caring, all of which have the potential to turn a life around. Leo Buscaglia

      Live in peace with animals. Animals bring love to our hearts and warmth to our souls.

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      • #4
        Thanks for the responses. Actually, in the mid-1990's Microsoft instituted a mandatory 100 day break-in-service policy for 1099s in response to a court case they lost for employee misclassification. Hence my curiousity about how others are managing similar issues there. Anyone have any ideas?

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        • #5
          That depends. The problem is that if you have a legitimate IC, flipping vendors every few months makes no sense. If we are talking say a local plumber who is only called in when something breaks, this vendor is never going to have their classification called into question.

          If instead you have a specific person under hard control, then this "worker" is very close to being considered an employee anyhow and putting in some arbitrary time limit may cut the amount of loses if the employer loses an audit, but will not by itself stop the adverse decision. The problem is two of the classification elements. The employer flipping which worker they are using every few months does not by itself improve the results of the classification tests. Let's say that the employer flips the worker each and every day. The problem is if they would have failed the tests by keeping they still would fail the same tests with daily flipping.

          1) The extent to which the services rendered are an integral part of the principal's business.
          2) The permanency of the relationship.


          Change your question a little, and I have worked for employers who had very hard limits on how long temporary employees could be kept. This was from concern of having ERISA level benefits start up for so-called temporary employees, but also to avoid giving departments methods to avoid normal staffing level controls.
          "Reality is that which, when you stop believing in it, doesn't go away".
          Philip K. **** (1928-1982)

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          • #6
            I appreciate your response, DAW - but I don't want to argue the merits or efficiency of managing ICs in one manner or another.

            I just want to know if there are any laws in the state of Florida that require a 1099 contractor to take a BIS, and if so - where I might find more information about those laws?

            Thanks,

            Claudia

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            • #7
              No. There isn't. Microsoft is not a legislative body; their policies do not have the force of law.
              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.

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              • #8
                <grin> ok, I must not be making sense.

                I know that MS is not a legislative body. The BIS was their response to being found guilty of misclassification and having to pay millions of dollars in compensatory back pay, benefits, and stock options.

                I just hadn't heard of any other companies doing this - or taking any other measures when the business choice was to subcontract specific tasks...and I wondered if anyone else had either, especially in the state of Florida (precedent and all that)?

                I hope that is more clear.

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                • #9
                  No. There is no law in Florida, or any other state, that requires a mandatory break in service for 1099 contractors.

                  Is that clear now?
                  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.

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                  • #10
                    That's exactly what I needed to know. Thanks!

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                    • #11
                      I thought that was established quite a few posts ago. Glad you've finally got it.
                      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

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