Full time employee on 1099

[HRZ]

THought one of the tests to treat employees as exempt went from 455 wk to 973 a wk by final rule Dec 1, 2016, DOL

But my starting point is the OP is an employee...and that's the automatic default status. ...he may be a very skilled architectural draftsman ...but nothing so far supports he is in business for himself under his own control control.....He's not an IC!

 

[LdiJ]

THought one of the tests to treat employees as exempt went from 455 wk to 973 a wk by final rule Dec 1, 2016, DOL

But my starting point is the OP is an employee...and that's the automatic default status. ...he may be a very skilled architectural draftsman ...but nothing so far supports he is in business for himself under his own control control.....He's not an IC!

Nobody disagrees with that. We just disagreed with you muddying the waters with exempt vs non-exempt issues when they were irrelevant to the matter at hand.

 

[justalayman]

THought one of the tests to treat employees as exempt went from 455 wk to 973 a wk by final rule Dec 1, 2016, DOL

But my starting point is the OP is an employee...and that's the automatic default status. ...he may be a very skilled architectural draftsman ...but nothing so far supports he is in business for himself under his own control control.....He's not an IC!

Has the injunction staying the implementation of the final rule been lifted?

to your starting point; his starting point that will result in an official and enforceable determination is to file the ss8. Whether I agree or disagree he is a IC is irrelevent regarding what the irs determines.

You seem to miss that he is being treated as an IC. He can either argue the point with the employer or take action the employer cannot argue with.

 

[Miamiemployee]

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.

Do I need a lawyer?

 

[Miamiemployee]

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

After checking my records, I made little over 45k.

 

[Miamiemployee]

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.

Dec 1 2016, was not making that much, mid year of 2017 i surpasses the amount. Is a wage claim suing for back wages?

 

[LdiJ]

Do I need a lawyer?

At this point no. You just need to file an SS-8 with the IRS and wait until they respond to that. You might need a tax professional to help you with the SS-8, however its also possible that you can do it without help.

 

[HRZ]

I read OP s question in broad liberal context of is there anything he can do about his pay status ....

IF we can agree that he is an employee...then it is also true that he is entitled to overtime pay unless he is exempt...and nothing so far supports his being exempt.

very rough estimate..if he works average of 48 hr a week and his base rate is $20 hr and has been such for 2 years at 50 weeks a year that's $24,000 and add 100% surcharge as it sure seems willful by employer..and we are about. 48,000.....a large enough number to suggest to OP that some homework and attention to filing deadlines for wage claim is prudent.

OP , you stated you were unlicensed ...this is one place NOT to overstate any professional or managerial duties or skills ....honest not " expanded "as you might put on a resume

 

[Miamiemployee]

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?

I clearly know I am/was an employee under direct control of my employer and supervisors from hours worked to the direction of work done on the firms equipment in the office. I knew it was shady from day one but was desperate to break into the field during the building collapse. I documented/ saved any email I thought could be incriminating, from the very first offer email to work for him. I documented every hour/ task/ project i worked on for 2 years and even went as far as to voice record a couple of performance reviews. I want to screw him like has done to so many desperate for work in the industry collapse and I always took offense to how he took advantage of foreigners. I guess you can say I hold a grudge......

 

[Miamiemployee]

At this point no. You just need to file an SS-8 with the IRS and wait until they respond to that. You might need a tax professional to help you with the SS-8, however its also possible that you can do it without help.

Thank you, will do.

 

[justalayman]

So file the Ss8 and get the official determination b

But realize there is an exemption for professionals. Regarding overtime. You may not be eligible for overtime depending on all of the facts

 

[Miamiemployee]

I read OP s question in broad liberal context of is there anything he can do about his pay status ....

IF we can agree that he is an employee...then it is also true that he is entitled to overtime pay unless he is exempt...and nothing so far supports his being exempt.

very rough estimate..if he works average of 48 hr a week and his base rate is $20 hr and has been such for 2 years at 50 weeks a year that's $24,000 and add 100% surcharge as it sure seems willful by employer..and we are about. 48,000.....a large enough number to suggest to OP that some homework and attention to filing deadlines for wage claim is prudent.

OP , you stated you were unlicensed ...this is one place NOT to overstate any professional or managerial duties or skills ....honest not " expanded "as you might put on a resume

I'm not sure if i follow.... I am a design professional / assistant project manager, I'm involved and perform every task of every phase of a project from zoning study concept-schematic design- design development- construction documents- construction administration- coordination with engineers / General contractor/ city building department/ peer reviewers and private providers while the building is being built (last was a 100 unit- 14 story -multifamily project) (I guess you could say i perform the job of a project architect / job captain / assistant project manager). After college graduation you have to earn enough on the job professional credits to sit for your Architectural Registration Exam that allows you to work for yourself and sign off on your own drawings. You can be the Architect of record for the project.

 

[cbg]

Which means it's possible that, while you should be classed as an employee, your job description would qualify you to be an exempt employee. Exempt employees are not eligible for overtime, even if they work 168 hours a week.

 

[eerelations]

OP, just file the SS-8. If you receive a determination that you're an employee, then you can worry about whether you're exempt or non-exempt. You absolutely cannot do the exempt vs non-exempt worrying thing until you've received an employee vs IC determination from the IRS. So do the SS-8 (and you probably don't need a lawyer to help you, try it out first without a lawyer, it's not that difficult, millions of people have done it sans lawyers with minimal difficulty) and then come back and tell us what the determination is. We will tell you what to do next.

(Also, please ignore HRZ.)