1099 Worker Fired

[socalfem]

My question involves labor and employment law for the state of: CAlif
not sure if this is the right forum, but here goes
my son is a pool cleaner with a 1099 and has worked for this guy for years, my son got into a car accident and won't be able to work for a few weeks, his boss said he still had his job, well today he told my son he was fired since he can't work.
Is there anything my son can do about this ?

[PattyPA]

The elephant in this room is whether or not he should have been classified as an independent contractor in the first place, and I very seriously doubt it.

Having said that, however, even if he WAS classified correctly as an employee, unless the employer has at least 50 employees (and that would include misclassified workers), the employer would not be subject to the FMLA anyway. And FMLA leave would be the ONLY job protection that he would have (if HE also met all the criteria as an employee).

[socalfem]

his boss works for a pool company that pays him and then my son works for his boss that pays him seperatly...not sure if that matters.
he pays him every friday by check also...

[jk]

no, it doesn't change.

It is still most likely your son was not an independent contractor (issued a 1099 at year end) but an employee (W2). There is still no safety net for him though.

Your son does likely have a valid claim to file with the DLSE if he was not properly paid for any overtime, allowed proper lunch and break periods, and anything else the DLSE requires an employer provide to an employee. I think the time limitation they can address is 2 years back.

[socalfem]

He was issued a 1099...never a W2
He worked his own hours, or should I say he got his pools done and then was able to go home

[PattyPA]

Not enough to make him an IC. He was almost certainly an employee of the company (or individual) that paid him.
http://www.irs.gov/pub/irs-pdf/p1779.pdf

[socalfem]

how does he prove that without proper paperwork ? never got a w2, got paid under the table but with a check from boss account.
what can my son do now ? he needs this job for his family

I reviewed the p1779.pdf and it looks like hes a bit of both...employee and IC
so now I don't know

[jk]

I know what he would be issued as an IC. I believe he was likely improperly classified as an IC. If correct, he should have been considered an employee and issued a W2 rather than the 1099.


If he is happy with things as they are (short of losing his job) then I would just drop things. Regardless of him correctly being an IC or employee, he wouldn't have any protections for the termination.

Classified as an IC, he was required to pay more in taxes (both employee and employer shares of SS and medicare taxes). If misclassified, he was also not represented in the unemployment compensation system as he should have been as his employer surely didn't pay into the fund for him as he would have with an employee. He may have also not been compensated properly if any of the laws I mentioned previously were applicable.

[socalfem]

I guess his 1099 was on a piece of paper not a proper 1099 !
can this guy get in trouble for this ? hes a arrogant idiot and needs to do what is right besides this situation. since my sons boss works for a actual COMPANY and subs my son for his work, then is the COMPANY in trouble or anything ?
I just don't know how to try and help my son with this

I guess his 1099 was on a piece of paper not a proper 1099 !
can this guy get in trouble for this ? hes a arrogant idiot and needs to do what is right besides this situation. since my sons boss works for a actual COMPANY and subs my son for his work, then is the COMPANY in trouble or anything ?
I just don't know how to try and help my son with this

anybody know the answers for me ?

[jk]

the only thing you can do is file a complaint with the DLSE if you believe he was improperly treated as an IC. I have no idea if he would be due any backpay.

One thing you need to think about though: now you say he did not even receive a proper 1099. Has he filed tax returns for his earnings? If not, he is going to owe a lot of money for taxes and penalties. Well, technically he owes them whether he files or not but if he starts poking the beast, they will be made aware of it and he will have to pay them.