How do I know if I am supposed to be on 1099 or W2?
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How do I know if I am supposed to be on 1099 or W2?
My husband is a non-emergency medical driver. He drives the company van, on the company insurance, uniform and they control his schedule but they put him under 1099 independent contractor. Is he rightfully supposed to be on 1099 or W2 in his situation? Also, his boss threatens to fire him whenever he refuses to do a run. what are the legal actions that my husband should take?
Asked on June 29, 2012 under Employment Labor Law, California
Answers:
SJZ, Member, New York Bar / FreeAdvice Contributing Attorney
Answered 11 years ago | Contributor
A 1099 employee is properly called an independent contractor. For the complete test of when someone is (or is not) an independent contractor, go to the U.S. Dept. of Labor website. In brief, an independent contractor has a significant degree of independence. He often can set his own hours, at least in part (e.g. may have to show up for meetings or certain scheduled times, but otherwise sets own schedule); determines how to do his job (so no manager looks over his shoulder to direct his work); provides his own tools, vehicle, and equipment; often has more than one client or employer; is responsible for his own profit and loss. From what you write, your husband may actually be an employee, not an independent contractor (i.e. should be on a W2)--it does not matter what he is called or how he has been paid; all that matters is the realities of how he works. If that is the case, he may be entitled to overtime; to having the employer may the employer portion of FICA for him; to being in the unemployment and worker's compensation system; etc. Your husband should discuss his situation in depth with an employment law attorney, to see if he is owed compensation.
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