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1099 or full time employee? Texas

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  • 1099 or full time employee? Texas

    I work 5 days a week for a cleaning company. I do not get 40 hrs. a week. My boss said I would get 1099 at end of year because I am a "contract laborer'. Should I be considered an employee since I work daily for this one person. Also, can an employer change the 'payday' from one day to another without giving notice?

  • #2
    Two very different questions.
    - It is extremely likely that you are legally an employee. Are you working for anyone else? Do you have an actual business unrelated to the work you are doing for the current "employer"?
    http://www.dol.gov/whd/regs/compliance/whdfs13.pdf
    - Your second question implies that it already has been determined that you are an employee. Non-employees do not have employers or pay dates. Non-employees are so-called "independant contractors". Basically vendors who have independant businesses. Payments to vendors is a function of conract law, not labor law. I am not sufficently well versed in TX payday law to spell out what their rules on employers changing paydays for employees, but I can say that if that is the only thing being done wrong (probably not), that it is likely not a very big deal. Incorrectly misclassfying a worker as an independant contractor, THAT is the big deal. The other thing if it is a deal at all, and it might not be, it is likely not a big deal.
    "Reality is that which, when you stop believing in it, doesn't go away".
    Philip K. **** (1928-1982)

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    • #3
      Texas -
      An employer must pay wages to each employee who is not exempt from the overtime pay
      at least twice per month (semi-monthly). If wages are paid twice a month, each pay period
      must consist as nearly as possible of an equal number of days. An employer must pay an
      employee exempt from overtime at least once per month. Texas Labor Code 61.011

      An employer must designate paydays. If an employer fails to designate paydays, the
      employer's paydays are the first and 15th day of each month. An employer must post, in
      conspicuous places in the workplace, notices indicating the paydays. Texas Labor Code
      61.012

      An employer must pay an employee who is not paid on a payday for any reason, including
      the employee's absence on a payday, on another regular business day on the employee's
      request. Texas Labor Code 61.013
      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
        1099 0r full time employee employee? Texas

        I moved to Texas 6 months ago and went to work for a local cleaning company (owned by one woman). She pays hourly for wages. I do not get 40 hours in a week... mainly 28 to 37 hrs a week. She started out paying every two weeks and then decided a few weeks ago to pay weekly, she stated that fridays would be paydays. When I turned in my time sheet on this past friday, she said that paydays were on mondays. I told her she had said it would be fridays, and she insisted it was stated that mondays were paydays. So I am sitting here with NO money on the weekend!!! does she have to POST in office so employees can read a 'sign' stating that mondays are paydays?
        I do NOT work for anyone else. When she hired me she said she would give me a 1099 at the end of the year. I would like to know if by me working everyday and just for her, am I considered to be a full-time employe or a contract laborer? Should she have to take out taxes or not.

        Comment


        • #5
          "Full time employee" likely has no legal meaning. Federal law (FLSA) does not care about such things. If you are an employee (which this person says you are not) and if the employer offers medical or retirement (unlikely) and if their mandatory written plan under the ERISA law cares about how many hours a week you work, then and only then does the concept of "full time" because legally interesting. I gave you a pointer to the federal DOL on worker classification. "Full time" was not mentioned.

          Focus on the key issue, and that is the worker classification. If you take the person who pays you (who will claim that they are NOT your employer) to court, or file an administrative action, the chances that you will eventually be determined to legally be an employee is outstanding. The chance that this will help you now for a late payment is basically zero.

          - You need to start looking for a real job with a real employer now, today, this minute. Do not quit your current job, but also do not assume that the person who is paying will magically turn into a good employer because of something said on an Internet board.

          - The chances that TX will care about the late payment of wages (the person who is paying you will claim these are not wages) is slim and none. However if you are not paid at all, you can file a wage claim with TX. The person who pays you will claim that you are not an employee, that the wage claim is the wrong venue for non-employees, but based on what you have said, they will (eventually) lose. Now whether or not you eventually recover on your judgement is a whole different issue. At some point, a bad employer is a bad employer and the only real cure is to find a good employer.
          "Reality is that which, when you stop believing in it, doesn't go away".
          Philip K. **** (1928-1982)

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          • #6
            Two factors that were brought to my attention a few years ago when I was working at store is the difference between and employee and a contractor is....
            1) Is it by my schedule or the store's schedule?
            2) Am I providing the equipment or is the store providing the equipment?
            3) Do I make my own rules and guidelines or does the store?
            4) If none of the above, is the agreement in writing?

            I'm not sure if it's like that in Texas or not.
            I don't believe what I write, and neither should you. Information furnished to you is for debate purposes only, be sure to verify with your own research.
            Keep in mind that the information provided may not be worth any more than either a politician's promise or what you paid for it (nothing).
            I also may not have been either sane or sober when I wrote it down.
            Don't worry, be happy.

            http://www.rcfp.org/taping/index.html is a good resource!

            Comment


            • #7
              The difference between employee and contractor is set by Federal law, not state. If the individual is a contractor under Federal law, a state can have more restrictions that make him or her an employee, but if he or she is an employee by Federal law, no state law can make him or her a contractor.
              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


              • #8
                Agreed. And it can get interesting. The feds actually have two different laws that discuss this (FLSA, IRC), with two different agencies involved (DOL, IRS). And the rules are similar but not identical. Then it would be nice to think that states have a single set of laws on their side, but that also is not always true. In CA (for example), UI claims are a function of the CA-EDD and the UIC law (as are SDI matters), while wage/hour issues (including related worker classification) are handled by CA-DLSE under the CLC. Fun times. The pointer I previously cited is federal DOL and it is as good a starting point as any. As CBG indicated, if the feds think the worker is an employee, the state cannot unring that bell as far as the feds are concerned. At most the state can say "not their problem". And most states worker classification defintion is based on the old Common Law defintion, which looks a lot like the federal DOL definition. IRC can get a little strange at times because there are things such as "statutory employees and non-employees" where somone passed a law specifically overriding the normal common law definitions. But with (mostly) those exceptions, IRC tends to follow the same rules as DOL. More or less.

                In the specific circumstances described by the OP, this appears pretty open and shut. The worker apparently is working for a single employer and apparently has taken none of the steps needed to support the worker being an independant business. It is not entirely impossible to argue that FLSA is not applicable, just very unlikely that the argument would work. And even on the remote chance that is was, IRC is certainly applicable because IRS could not care less that FLSA is not applicable, and TX law still gets a bite at the apple. The chances the OP is an employee is not mathematically certain, but is extremely good. However this does not help with the person who pays the worker paying late. Which is strictly a TX issue, and one that TX (or any other state) will not likely get very excited about.

                At some point a bad employer is a bad employer. And the only real cure is to find a good employer.
                "Reality is that which, when you stop believing in it, doesn't go away".
                Philip K. **** (1928-1982)

                Comment

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