How long does an employer have to give a paycheckto a1099 employee?

UPDATED: Sep 22, 2011

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How long does an employer have to give a paycheckto a1099 employee?

I was hired as a property manager for a management company. I was told my paydays would be the 5th and the 19th. Every “payday” I do not receive a check, I have to ask for days and weeks to get my paycheck. What’s the law on this? Also, they told me I was 1099 but they set my hours and what time I must be there (just like an employee).  If they tell me to be there 9-5 everyday like a regular employee but tell me I’ll be fired if I’m not there, how is this an independent contractor job? Are they skirting the law? They won’t answer me now.

Asked on September 22, 2011 under Employment Labor Law, California


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 11 years ago | Contributor

Two very different issues:

1) First, there is NO such thing as a "1099 employee." Either you are an independent contractor (who gets a 1099, not a W-2, to record payments, taxes, etc.) or you are an employee--you can't mix the two. Furthermore, in determining whether you an independent contractor or an employee, it doesn't matter what they call you, or what paperwork you  receive; what matters is the reality of the job. If you go either or both of the IRS and DOL websites, you can find information about the criteria to be an independent contractor: in brief, and to oversimplify, an independent contractor IS independent--he or she sets his or her own hours and location of work, determines how to do the job, typically has more than one client, does his or her own marketing and provides his or her own equipment, etc. If you are having to work onsite, 9 - 5, and the company can direct how you do your job, you are probably an employee.

If you are an employee, the company has to pay your share of FICA; has to pay overtime, if applicable; and may owe you benefits. If you think you have been misclassified, you should speak with an employement attorney about what you may be entitled to.

2) If someone is legitimately an independent contractor, then the law does not say when they get paid--it's all as per the contract or agreement between the contractor and the company.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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