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Recourse for Misclassification as a Contractor Ohio Ohio

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  • Recourse for Misclassification as a Contractor Ohio Ohio

    • I live and work in Ohio.
    • I've had a job for more than two years now where I get paid on a 1099.
    • I'm only given opportunity for about 24-28 hours of work weekly.
    • Per their request when I started, I submit my hours on a timesheet including specific times of arrival, departure, and times out.
    • They asked me to fill out an emergency contact form.
    • I use their computer with a written provision that I can use it for personal use as well.
    • I haven't submitted mileage to the IRS and haven't claimed home-office use.

    Recently they've been asking me to arrive, leave, and take unpaid lunch at specific times. Yesterday, I finally got that request in writing:
    This is to confirm and remind you again that the terms or your consulting arrangement with XXXXXX REQUIRE you to be at work Monday-Thursday 9-5 with one hour lunch break. This past week you were late twice coming in the office during those times and particularly on Wednesday where you didn’t come in the office until 10:00 am. Please confirm back to me that you understand the time obligations of your arrangement. Please advise XXXXXX of your lunch breaks if you take an hour break other than the normal mid day lunch. Finally, remember to advise me ahead of time directly if you are not able to abide by these requirements.
    Yes, I have not played along and the timesheets indicate that.

    Nevertheless, I feel stifled and anchored to this place. Hard to drum up other work when I only have one day a week for meetings. I am likely to get fired soon because my position has been diminished to where I don't have much work to do.
    1. Have I been misclassified?
    2. Practically, what could be the best outcome from challenging the status?
    3. Would you suggest incurring the cost of speaking to a lawyer?


    I realize I have to move on but am concerned about not getting unemployment.

    Thanks!

  • #2
    Based solely on what you posted it is impossible to say that you are misclassified. A contract for certain days and hours does not mean you are automatically an employee. Asking for an accurate accounting of your time isn't either. The IRS uses a 20 factor test as part of their analysis. www.irs.gov/pub/irs-utl/x-26-07.pdf
    I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.

    Comment


    • #3
      Originally posted by ElleMD View Post
      ...it is impossible to say that you are misclassified...
      Please clarify if you mean that I'm definitely not misclassified or that it's impossible to know whether I'm misclassified.

      Thanks!

      Comment


      • #4
        You didn't provide enough details to determine one way or the other.
        I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.

        Comment


        • #5
          There's no one hard and fast test. It depends on how many of the factors in the test Elle posted apply-and there is no magic number even then. It's just a combination of factors. The evidence that you have given so far is not enough for us to make that call.

          If you really want to find out you can file this form with the IRS http://www.irs.gov/pub/irs-pdf/fss8.pdf

          If it is determined you should in fact be classified as an employee, you could file for a refund of 1/2 of the last 3 years of self-employment taxes you have paid.

          Comment

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