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Complicated situation North Carolina

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  • Complicated situation North Carolina

    This is incredibly complicated, so I'll try to keep it short and important key words are capped and bolded.

    I was an EMPLOYEE of a real estate office. At the same time, from other real estate agents in the office, I received checks for doing work for them, under the company's direction.

    My boss says, I can't afford to keep anyone on payroll anymore and eliminated the entire STAFF I was told, I needed to stay on as an INDEPENDENT CONTRACTOR.

    I was able to catch my boss on tape saying she was eliminating me from payroll. When my last day on payroll came around, I told her I could not be an independent contractor for her, gave her my key to the building and left. I was able to catch on tape "so today is the last day you're keeping me on payroll, right" and her response "yes".

    She is now claiming I quit. I filed for unemployment just a few days ago, but I know she will try to fight it.

    In addition, I have paystubs to prove that she was paying LESS THAN MINIMUM WAGE. Furthermore, nobody in the office met the criteria for treating me as an INDEPENDENT CONTRACTOR per IRS CODE (visible here: http://www.irs.gov/businesses/small/...=99921,00.html and also here: http://www.irs.gov/businesses/small/...179111,00.html )

    My questions..........will I be able to collect unemployment? Will I be able to get back pay for being paid less than minimum wage? Will I be able to get back pay for being forced to pay self-employment taxes when I truly was not an independent contractor?

    ETA: I also now have in writing that she is instructing people in her office to not work with me whether employee or independent contractor basis.
    Last edited by HelpMeInNC; 02-03-2009, 08:51 AM. Reason: Forgot an important point to make.

  • #2
    What, in fact, did/do you DO for this real estate office? Were you a real estate agent? There's a reason I'm asking.
    I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

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    • #3
      I am a licensed real estate agent, however, I was not involved in sales and not commission based. I received an actual payroll check with taxes withheld. I was administrative staff.
      Last edited by HelpMeInNC; 02-03-2009, 09:06 AM. Reason: Ugh-forgot to make a point.

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      • #4
        OK, then, just wanted to make sure.

        So, what happened was that you refused to be misclassified as an IC (and, by doing so, refused to assist the employer in violating a whole bunch of laws).

        Theoretically, you DID quit. However, I would also think that you had "good cause attributable to the employer" to do so, that good cause being the above.

        I'd fight this one if the employer does protest. However, I'm not sure that you could use the tape you talked about because I don't know the recording privacy laws in your state. Betty3?
        I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

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        • #5
          Thanks for the encouraging reply. Based on this: http://www.rcfp.org/taping/states/northcarolina.html , I think I'm able to use the recording since I was a party to all the conversations that were taped. This site talks about telephone however, not in person. I'm certainly no attorney though, so I could be wrong.

          Comment


          • #6
            You can file for UC but if you were offered continuing employment, your chances are iffy of getting it. Whether you were going to be properly classified or not generally isn't relevant in determining whether or not you were offered continuing work. If you were improperly classified or paid, there are remedies for that which have nothing to do with continued employment.

            It can't hurt to file but it is up to the state. If you were paid less than minimum wage and were not otherwise exempt, file a claim for unpaid wages with the state DOL. That will also have no real bearing on your UC claim but the DOL will investigate and determine if you were properly paid.
            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.

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            • #7
              I'm not so sure that I agree with ElleMD, although I usually do. I'm thinking that refusing to go along with what is almost certainly a violation of several laws might be "good cause". But it's only my $.02 and who knows what the state will decide?

              OTOH, you could "accept" under the IC "agreement" and as soon as you got your first check with no taxes withheld, didn't get paid minimum wage, didn't get overtime pay (all things that go along with being an employee), you could start filing complaints/claims with the applicable regulatory authorities.
              Last edited by Pattymd; 02-03-2009, 11:59 AM.
              I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

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              • #8
                I am basing my comments on what I know from experience in MD when an employee is offered subsequent employment as an IC. In my cases the employment legitimately qualified as IC, but that never came up in the hearings. All the state cared about was that the employee was offered continued work of some kind.

                I have a current case that for obvious reasons I don't want to share a lot of details of, where the the employee was offered subsequent employment on an "unofficial" basis with someone else and UI was denied.

                I can't say for sure how NC views this but as the employee never worked a single day as an IC, whether qualified or not, I would expect there to be an additional burden. If you never brought it to the attention of the employer that you believed the practice to be illegal or improper then it makes it even tougher.
                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.

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                • #9
                  I'd be interested in getting Bob Bollinger's take on this. Bob, if you're around, chime in, please?
                  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
                    Originally posted by Pattymd View Post
                    However, I'm not sure that you could use the tape you talked about because I don't know the recording privacy laws in your state. Betty3?
                    This is the only thing I have on NC privacy laws.

                    Interception of any wire, oral, or electronic communication without consent of one party to the communication is prohibited.

                    There is no specific surveillance statutory provision, but there could be common law claims (such as intentional infliction of emotional distress or invasion of privacy) brought based on surveillance in extreme situations.

                    One-party audio recording consent is required.
                    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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                    • #11
                      Thanks, CBG.

                      Help Me, by making the tape, you are the one party that consented. I think it will be a legal tape and admissible in the hearing if you end up having to appeal a denial. You have to testify that you made the tape, if that is true, and identify every voice on it. And your former employer is looking at committing the felony of perjury if he testifies contrary to the tape.

                      I think Patty is right with the misclassification argument. I don't think your former boss has offered you continued employment. That would require an employer-employee relationship, which he was specifically not offering you. An Independent Contractor has no employer. So I think you are ok there.

                      If your unemployment is denied, you should appeal. The appeal hearings are typically done over the phone, so make sure you can play that tape back audibly over the phone. You may want to ask whether you can actually appear in person with your tape recorder in front of the hearing officer. You may also want to get a typed transcript of that tape, and consider the best way to use it. Sometimes letting the other side know you've got them on tape, and sharing the transcript, can make the defense go away.

                      I think you are in the right, but that does not mean you will prevail. You still have to jump through the hoops.

                      How many employees did they have? Three or more? If so, I bet the agency had no work comp insurance, which is also a crime. The NC Industrial Commission polices that issue.

                      Bob
                      Bob Bollinger, Attorney
                      Board Certified Specialist in NC Workers' Compensation Law
                      Charlotte, NC

                      Comment


                      • #12
                        What about US Code 119 TITLE 18 > PART I > CHAPTER 119 > § 2515
                        How does this code affect GS 15a-287 code stating if one party knows it's ok? Is this portion referring to those interceptions obtained illegally which violate the GS?

                        § 2515. Prohibition of use as evidence of intercepted wire or oral communications

                        Whenever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the United States, a State, or a political subdivision thereof if the disclosure of that information would be in violation of this chapter.


                        Before acting on any part of this law, I'd like to be sure there isn't something hiding out there I don't know about to thwart my efforts.

                        Thanks
                        KB

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                        • #13
                          Nckrystalblue, instead of attaching questions to other people's threads, please start a thread of your own with YOUR situation in 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.

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                          • #14
                            It was relevent to the law referenced in this thread regarless of situation. Thought that was policy - sorry.

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