Worker Hired as Independent Contractor, Treated as an Employee

[mixmaster]

My question involves civil rights in the State of: Alabama. I was hired as a bartender whom never received any compensation other than tips. Is it illegal for an employer to hire with intentions of that employee being a private contractor, who will be 1099, and that employee not be licenced to be a private contractor. Wouldn't that employer be required to pay the base rate of $2.13 and withhold taxes throughout the work year?

[flyingron]

You are almost certainly not a private contractor. Your employer is responsible for all the accoutrements of employees which means minimum wage (when not cleared by received tips), unemployment taxes, the employer's share of the social security, medical etc...
You should be getting a W-2 and not a 1099.

Lots of information here: http://www.dol.gov/whd/

[mixmaster]

Thank you for the reply. As I have just learned I will not receive a W-2 nor a 1099. Where does this leave me? Do I have grounds for a civil suit? I can't understand how an employer can not account for earnings .

[flyingron]

As a tipped employee, first is is YOUR responsibility to account for tips you receive.

You don't start with a civil suit. You start with two things:

1. A department of labor complaint as to the failure to pay the minimum wage.
2. A SS-8 determination determination form with the IRS and an 8919 form to the IRS to protect yourself from federal tax liability you should not be obliged to.

Only after you've exhausted your due process via the regulatory means do you move to a civil suit.

[mixmaster]

IThank you , your support through this matter was direct and time sensitive. I appreciate your attention.

[Brian Simoneau]

You're an employee. Check out the case of Kayla Jenks v. the Golden Banana. Ms. Jenks works as an "exotic dancer" and she was misclassified as an IC when she was actually an employee, as determined by the court. Judge Welch wrote a great decision.