ExpertLaw.com Forums

Can a Misclassified Independent Contractor Get Unemployment

Printable View

  • 02-26-2011, 09:15 AM
    Universal1411
    Can a Misclassified Independent Contractor Get Unemployment
    My question involves unemployment benefits for the state of: Michigan

    I have been working for my employer for 6 years. Upon my hire I was told I was a salary employee. I only worked 40 hours at the time so I never questioned it. My hours then went up to 45 and was told it was to cover our lunches during the week. Once again, never questioned.
    Recently, they have instructed us that we must work a 47.5 hour work week. They have taken our old salary rate, divided it hourly and pay us on an hourly basis. I am 100% positive that I am being being misclassified as an IC as I have numerous documents showing this (manager "employee handbook and guidelines", paid hourly and deducted hourly, and alot more). I have NEVER received any overtime, and have kept every time sheet showing my hours. They have admitted they pay this way to avoid taxes.
    Unfortunately my pay has decreased DRASTICALLY, by $140 a week. I am unable to work 47.5 hours due to the demands of new parenting. I was also only allowed to take 4 weeks for Mat. leave which was also unpaid. There are even a few employees making under minimum wage.

    My questions are;

    If I quit am I able to collect Unemployment benefits based on the grounds above?

    Will I have any issues with my taxes? I have filed every year and have paid (1099).

    I have heard of past employees getting UI, but not sure how. Would it automatically be denied?

    Thank you for your help.
  • 02-26-2011, 09:29 AM
    PattyPA
    Re: Unemployment Eligible if Misclassified Ic
    Yes, it will be automatically denied, at least the original claim. You will have to appeal and prove what you were paid for, basically, the last 18 months, and it could take several months.

    The problem will be, even if you WERE properly classified as an employee, the "employer" does not have to take into consideration your personal situation when scheduling your hours. Quitting because you have a personal situation that does not "allow" you to work the hours required by the employer almost never is a qualifying reason to quit and still receive UI benefits. Again, this would be true even if you were not "improperly classified as an IC".
  • 02-26-2011, 09:47 AM
    Universal1411
    Re: Unemployment Eligible if Misclassified Ic
    Quote:

    Quitting because you have a personal situation that does not "allow" you to work the hours required by the employer almost never is a qualifying reason to quit and still receive UI benefits.
    To respond, I would not be quitting due to not being able to work the new imposed hours. I would be quitting due to the fact that I am being misclassified as an IC. That after several attempts to my boss regarding this, my pay, and the legalities of it. Also the fact that because of them paying me in this manner I haven't been able to pay into my SS properly, and have had to pay an ambiguous amount of self- employment tax every spring. It's just completely unfair, and I am sick of being taken advantage of. At times it ven seems as if they're trying to get me to quit.
    Also I have asked them several times to either put me on as W-2 or revert back to my normal pay and hours ( as an "IC") and nothing has ever prevailed.
  • 02-26-2011, 10:25 AM
    PattyPA
    Re: Unemployment Eligible if Misclassified Ic
    OK, then, it's possible, but it's not carved in stone.

    Excuse my bluntness, but you've been "misclassified" for 6 years and NOW you think you should be able to quit and receive UI benefits because you can't work the hours due to personal reasons that will get you your same compensation?

    Self-employment tax is not an "ambiguous amount". It's 15.3% of earnings and that's what it IS, Social Security and Medicare tax.

    Why didn't you just report this employer 6 years ago?
  • 02-26-2011, 10:40 AM
    Universal1411
    Re: Unemployment Eligible if Misclassified Ic
    I was not aware that what was being done, was actually illegal. Your not being blunt, and I do appreciate your help. I brought it up once before to them, and they had some answer that at the time sounded legit. In regards with my hours, when I state I am unable to work the hours requested, I still work 45, not the newly imposed 47.5. Yes I'm still aware that I'm not working the hours instructed, but I do not see the harm in not working an extra 2 hours will do to my case. Since I'm not being paid any overtime, for anything over 40.

    I was not aware that there was even anything as a misclassification. Until I got married and my husband filed our taxes joint and brought it up to me then.

    I do not think I can just quit and get paid for it since I was misclassified. But unfortunately in Michigan it is difficult to find employment, and was inquiring to see if I did quit due to misclassification and CANNOT find new employment in a timely manner if I would be eligible for UB.
  • 02-26-2011, 10:46 AM
    PattyPA
    Re: Unemployment Eligible if Misclassified Ic
    I think you'd have an uphill battle. The state would want to know why you hadn't availed yourself of the legal recourse you had, i.e., reporting the employer to the appropriate agencies, such as the IRS, state Dept of Revenue, state Unemployment Commission, state Worker's Comp Commission.

    Have you completed and submitted an SS-8 to the IRS? You can get it on the IRS website.
  • 02-26-2011, 11:19 AM
    davidmcbeth3
    Re: Unemployment Eligible if Misclassified Ic
    Quote:

    Quoting PattyPA
    View Post
    OK, then, it's possible, but it's not carved in stone.

    Excuse my bluntness, but you've been "misclassified" for 6 years and NOW you think you should be able to quit and receive UI benefits because you can't work the hours due to personal reasons that will get you your same compensation?

    Self-employment tax is not an "ambiguous amount". It's 15.3% of earnings and that's what it IS, Social Security and Medicare tax.

    Why didn't you just report this employer 6 years ago?

    But there are administative remedies for being classified incorrectly; I would imagine the UI would require these to be performed.

    You can call your local/state DOL to see about getting back pay (I think they can go back 3 yrs) for all the OT that you workd. Assuming you were not classified correctly. Go and read the FSLA and highlight to the DOL where you were improperly classified.

    They can switch you from exempt to non-exempt & adjust your pay scale.....so I don't think you could quit & collect UI ... best bet is to get your possible backpay ...

    Are you a W-2 employee or a 1099? I don't know if a 1099 worker ahs the same rights as a W-2 employee ... call DOL & find out. Post back.
    Information needed for DOL to make a determination include: the work that you do , education of you, education of you boss, if your work output is dependant upon time. The DOL will usually contact the employer and ask for the backpay & they can object & then an admin hearing is held.

    Contact your DOL.
All times are GMT -7. The time now is 08:33 PM.
Powered by vBulletin® Version 4.2.4
Copyright © 2023 vBulletin Solutions, Inc. All rights reserved.
Copyright © 2004 - 2018 ExpertLaw.com, All Rights Reserved