Full time employee on 1099

[Miamiemployee]

Miami, FL USA

Sorry if I am posting in the wrong forum....

I have been working for little over two years as a full time employee working 40+ hours a week at a local architecture firm in Miami on a 1099 at a W2 wage. I have asked for a w2 multiple times and my employer refuses, the is not just the case with me alone. The firm consists of about 10 people full time and everyone was on a 1099 for years, just only recently he put a few project managers on a W2 and the rest are still on a 1099. I believe he gets away with this because he hires mostly foreigners. I was wondering if there was any recourse that could be had.

The reason I subjected myself to this situation was because I graduated when the Architecture industry collapsed and I was desperate for experience. Now, I have leveraged why experience to attain employment at a good company and am currently sitting for my license. Did crawl the trenches to get to high ground and chalk it up as so, or is there something I can do about it. I know suing is probably not financially feasible but can I sick the IRS on him and

Thanks for any advice.

 

[cbg]

You are free to make a report to the IRS.

 

[justalayman]

File an ss8 with the irs and see where it goes.
https://www.irs.gov/forms-pubs/about-form-ss8

https://www.irs.gov/pub/irs-pdf/fss8.pdf

 

[HRZ]

Effective Dec 1,2016 were you paid at rate of $ 47,474 or more /year?

 

[Miamiemployee]

Dec 2016

No, about 45k for my hourly rate. For the year of 2016, yes I made about 47.5 for all the hours worked

 

[Miamiemployee]

Ss8

File an ss8 with the irs and see where it goes.
https://www.irs.gov/forms-pubs/about-form-ss8

https://www.irs.gov/pub/irs-pdf/fss8.pdf

Does that usually go anywhere in the end?

 

[Miamiemployee]

Rate of 47,475

Effective Dec 1,2016 were you paid at rate of $ 47,474 or more /year?

Yes, after all hours worked.

 

[Miamiemployee]

Dec 2016

I would have to check my records but does that make a difference?

 

[LdiJ]

Does that usually go anywhere in the end?

Yes, it quite often does. I had several clients get a successful result last year filing an SS-8. The IRS is anxious to catch companies that misclassify employees as contractors.

 

[justalayman]

Does that usually go anywhere in the end?

It provides a determination of whether the irs determines you to be an employee or an independent contractor. If that’s what you mean by does it go anywhere, then yes it does.

 

[justalayman]

Effective Dec 1,2016 were you paid at rate of $ 47,474 or more /year?

What does pay rate have to do with determination of IC or employee? You can make $.12/annually and still be either. Pay scale makes a difference when determining exempt v. Non-exempt but not IC v. Employee.

 

[HRZ]

The point to double check is two fold ...You are an employee by default unless the facts line up that you meet the criteria to be an IC ...and based on what you post , and assuming at the time you were not a licensed architect iit is very likely you were misclassified .

IF you were an employee earning less than 47,474 after Dec 1 , 2016 that triggers you are not exempt...and are likely due OT.

I've been out of HR a long time and this hourly wage stuff never was my cup of tea...but I know enough to follow smells ..and this smells...

I do not know the rules pre 2016 and I do not know what happens if you hit the threshold midstream ormeven how to compute it midstream ...I suspect it is figured weekly at $9?? ..

THis is not a rare issue of deliberate misclassification ...and your timelines seem to parallel some changes is rules designd to reduce abuse directed at many midlevel folks .

THe salary test by itself may not be a safe harbor on the topside ...I don't know...the point to check is if a nonexempt person with a decent wage is automatically exempt when he or she goes past the minimums ...my guess does not count...you look it up.

NOTE there are some time limits as to looking backwards for a wage claim and missed OT ..and the SS-8 process may take a good bit of time and the IRS is not in the loop to address your wage claims.

 

[LdiJ]

The point to double check is two fold ...You are an employee by default unless the facts line up that you meet the criteria to be an IC ...and based on what you post , and assuming at the time you were not a licensed architect iit is very likely you were misclassified .

IF you were an employee earning less than 47,474 after Dec 1 , 2016 that triggers you are not exempt...and are likely due OT.

I've been out of HR a long time and this hourly wage stuff never was my cup of tea...but I know enough to follow smells ..and this smells...

I do not know the rules pre 2016 and I do not know what happens if you hit the threshold midstream ormeven how to compute it midstream ...I suspect it is figured weekly at $9?? ..

THis is not a rare issue of deliberate misclassification ...and your timelines seem to parallel some changes is rules designd to reduce abuse directed at many midlevel folks .

THe salary test by itself may not be a safe harbor on the topside ...I don't know...the point to check is if a nonexempt person with a decent wage is automatically exempt when he or she goes past the minimums ...my guess does not count...you look it up.

NOTE there are some time limits as to looking backwards for a wage claim and missed OT ..and the SS-8 process may take a good bit of time and the IRS is not in the loop to address your wage claims.

The question of exempt vs non-exempt is completely irrelevant UNTIL or UNLESS the IRS determines that they were misclassified. If the IRS determines that they were misclassified and should have been treated as an employee, then it might trigger the need to determine if they were exempt or non-exempt.

 

[HRZ]

THe starting point is if he is an employee...and so far nothing is being addressed as to the common 20 factors or employer right of control....and he is an employee until the facts line up otherwise.

FL follows Feds , FLSA

THe $ and timelines for remedies are often state specific ..may be as short as a 2-3 lookback....but the $ recovery can include damages and attorney fees

 

[justalayman]

THe starting point is if he is an employee...and so far nothing is being addressed as to the common 20 factors or employer right of control....and he is an employee until the facts line up otherwise.

FL follows Feds , FLSA

THe $ and timelines for remedies are often state specific ..may be as short as a 2-3 lookback....but the $ recovery can include damages and attorney fees

Nothing has been addressed? We can warble over his duties and such all day long but what the irs says is what matters. That will get op an answer.

The last I read the threshold was stil $23,600 annually and not the $47k figure you used for the salaried earnings threshold. There was an attempt to increase it but it failed as far as I know. Do you have something stating the higher figure was approved?