what do you do if you were considered an employee but your employer paid you via 1099?

UPDATED: Sep 30, 2022

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what do you do if you were considered an employee but your employer paid you via 1099?

Employer started out paying my husband comission and then set his,weekly rate at 500/wk. He used their truck that stayed at the shop. Other employees also used the same truck and he was not in control of anything as far as what jobs he took, his pay rate, hours he worked or what days. His employer also garnished his last paycheck due to ‘damage of customer property’ even though my husband hadn’t signed anything or agreed to anything stating he was responsible financially if property we’re damaged in any given circumstances. Need some help to figure out what direction to go with this.

Asked on June 7, 2016 under Employment Labor Law, Ohio


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 6 years ago | Contributor

1) If you meet the criteria to be an employee, which your husband evidently did, based on what you write, you must be paid as an employee (e.g, the employer pays the employer share of social security and medicare; income tax is withheld; contributions made to unemployment; benefits provided as appropriate)--the employer has no discretion or legal right to pay an employee as a contractor.
2) No money can be taken from either an employee's or contractor's pay for property damage, even if true, without cinsent. If the employer believes the employee or contractor caused damage but will not voluntarily pay for it, the employer's recouse is to sue the money.
Your husband should speak to the state department of labor and file a complaint: they should be able to help him with being mischaracterized as a contractor and may be able to help with the garnishment issue, too. (If not, he could sue, such as in small claims court, for the money he is owed.)

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