As a part-time and on-call dealer exchange driver, can my employer decide to make us 1099 employees?
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As a part-time and on-call dealer exchange driver, can my employer decide to make us 1099 employees?
I am a part-time on-call dealer exchange driver for a local auto group and we have always been paid by an hourly wage and had taxes taken out now all of a sudden without notice I get a check
without taxes taken out and I inquire and I’m told that we are now 1099 employees but I have never filled out a W-9 and was not even aware of this. So what do we have to do to make all this correct and be within the law?
Asked on April 18, 2019 under Employment Labor Law, Virginia
Answers:
SJZ, Member, New York Bar / FreeAdvice Contributing Attorney
Answered 5 years ago | Contributor
The proper term for a "1099 employee" is an "independent contractor," since someone who gets a 1099 is not an employee. IF you meet the criteria to be an independent contractor, the company can make you one--there are people who could be an employee but also could be an independent contractor, and the company for which they work gets to decide how it wants to employ and pay them. The key, though, is that you must meet the criteria to be an independent contrator: the company cannot call you or pay you as one if you do not qualify.
Here is a link to a webpage by the U.S. Department of Labor about what qualifies someone as an independent contractor: https://webapps.dol.gov/elaws/whd/flsa/docs/contractors.asp
Here is another U.S. DOL webapge on the subject: https://www.dol.gov/whd/regs/compliance/whdfs13.htm
Compare the criteria to be an independent contractor to you job. If you could be an independent contractor, your employer may do this. But if you don't qualify to be an independent contractor, contact the state or federal department of labor to file a "misclassification" complaint.
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