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  1. #1
    Join Date
    Mar 2015
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    7

    Default Re: Misclassified Independent Contractor Denied Unemployment for Tardiness

    In my sleep deprived state, I misread Superior Court and not Supreme. So yes FLYINGRON, you are correct, it was Superior and NOT supreme.

    Because of my limited experience with unemployment, appeals and 1099 employment, this is where the majority of my questions come into play.

    I am confused myself because I am uncertain of the process. There is a substantial amount of information about how unemployment works but not in my specific situation. I was under the impression that the initial claim should not have been denied BECAUSE of the misclassification. I mentioned that my termination occurred while I was a 1099. The determination that I was actually an employee took place during the Field Audit conducted by the DOL in determining my unemployment eligibility.

    Had I not had a workers comp lawyer working on a case for an injury from another job where I was injured in 2013, I would have never know of the misclassification at all. He is strictly workers comp, NOT labor relations, or I would defer to him for questions.

    To provide more clarification, here is a timeline. Again, as I mentioned, I know all of the facts in my head, and in an effort to try and maintain discretion, I have tried to keep it simple.

    2012 - hired as 1099 employee by a CPA initial hours set by employer
    2013 - family member had major surgery, requested later start time to do morning care for said family member, employer agreed to later start time. Mid 2013 injured at second job, had physical therapy and doctors appts that overlapped with this 1099 job, also advised employer of this. He even had to write a letter to WC carrier to cover hours that were missed for appts, stated I was a 1099 employee.
    2014, advised employer of sharing vehicle with another, always kept him in the loop about in and out times if they did not fall in line with what we discussed/he requested.

    Week prior to termination, provided a timesheet that included a day that I actually missed due to illness, complete with doctors note, but he rushed me to provide it so I copied the previous week and did not omit the day I missed. The next day, he advised me he reviewed the timesheet and accused me of being dishonest (given his recent and upcoming regulatory authority audits, I find that statement ironic and hypocritical) The following week, I was terminated.

    Week after termination, WC lawyer reached out to ask why I was a 1099 and if employer could change it to a W2. I advised him of termination and told him that may not be possible. He suggested applying for unemployment to have them determine my true status.

    Had initial call with UI representative. She took my information, citing that the employer, in his statement to UI, claimed that I was tardy a "handful of times", and that I was also ineligible due to 1099 status. This triggered a Field Audit to make that determination.

    At the same time, I also filed with Wage and Hour division for unpaid hours. They also were reviewing my 1099 status.

    Received a second call from UI rep who received a letter from employer, changing his initial statement of tardiness "a handful of times" to including the building security entrance times, as he did not have ANY records reflecting my hours worked, dates I was tardy, dates he "claimed" to have verbally warned me, nothing specific to when I actually worked there. The denial letter said I could appeal. Part of it was confusing the dates with medical appointments and part of it was that everything else I had encountered was business days, not calendar days. Add in high doses of strong pain meds and valium combined with very little, if any most nights, sleep, and the confusion occurred. I should have been more thorough. I usually am.

    At the same time, both Wage and Hour and the Field Audit determined me to be an actual employee/W2 and NOT a 1099. So my employee determination status was made AFTER termination.

    When I realized that my appeal date had come and gone, by 2 days, I submitted the appeal online immediately. This is when I received notice of the appeal hearing. During the appeal hearing, the referee stated there were two items to be addressed. One was if I had just cause for filing late and the other was to determine if the employer had just cause for denying unemployment benefits after the termination. The employer answered the referees questions, but could not cite specific dates for verbal or written warnings. He in fact stated that the last warning I received was the day I was terminated, which wasnt true, I was called into his office and let go, so he couldn't even recall the events due to insufficient records. I mentioned that I was a 1099 found to be a W2 employee at the end of the call. I provided copies of medical information to the referee regarding emergency room visits, doctors visits etc, so I did have substantial documentation.

    I received a follow up letter from the referee stating I had just cause in filing late and also that the employer condoned my tardiness, as it had occurred several times more than he originally stated and he did not have records of anything reflecting my hours. In one of the last sentences, this referee mentioned the misclassification. The denial was reversed and benefits awarded.

    Of course, he appealed, citing Section 31-236-28, 31-236-26a and 31-236-26b. The ironic thing, in his fifth paragraph, in citing 31-236-26a, he says at time the EMPLOYEE committed the act, when he had terminated me as a 1099.

    The Board of Review claimed that I did not have sufficient reasoning for filing the claim late and they reversed the referee's decision and also wrote "The claimant's appeal to the referee is dismissed for lack of jurisdiction." How is that possible? How can the referee have lack of jurisdiction?

    I then received a second letter stating that they reviewed the tape from the hearing, which why they didn't do so in the first place is beyond me. The reasoning was the same, but the jurisdiction thing is baffling to me. But in NEITHER of the letters that the Board of Review sent did they mention anything about the misclassification.

    My thought is to motion the Board of Review to reopen/modify this verdict, if you will. The Board only reviewed his appeal, but none of the reasoning he cited was even included. It all had to do with the timing of my submission. My thought is that I shouldn't have been denied to begin with BECAUSE of the misclassification. And the fact that when Wage and Hour completed their review and determined that the employer had no records whatsoever, he had to pay me for the hours I kept track of and he didn't. And those were the ones I had hard copy of, the others were on a flash drive that got misplaced. The employer sent me a W2 for the back wages, but a 1099 for the other wages for 2014. Ironically, the unpaid wages cover 2013 AND 2014, so the fact that he gave the W2 kind of puts him in the hot seat with the IRS and CT DRS, hence the IRS SS8 and 8919 forms and amended returns I will be providing.

    Please don't be mistaken, I am a workaholic, and have for the majority of my working life, worked more than one job because I'd rather work hard now and not have to when I am of retirement age. I am a second generation military brat and laziness was not something we ever practiced. I don't want to be one of those folks who sits and collects money for not doing anything. While I am typing this, I am also coordinating appointments, scanning all of the documents in to have them optically stored and a few other tasks. I am not lazy and looking for a payday by any means. Yes, I do have a medical issue, which if the doctor could identify the issue correctly (totally different frustrating story), I would not be having the issues 133 days later since the initial onset. I just don't want this employer to get away with doing something that as a CPA he should've know NOT to do in the first place. Adding it up, he would've had to pay so little in taxes, FICA etc and I was part time in a very small office so no benefits would've been required, so I really don't understand why he felt it was alright to misclassify me. It's a pain to have to refile my taxes, submit additional documents and waste time.

    I'm hoping this is a little clearer, and I do apologize for Supreme vs Superior. I just watched this man mismanage retirement plans (separate issue, but goes to relevance of character) and get away with it, I don't want to see him get away with this too which is why I am willing to do whatever is needed to ensure he can not continue to get away with it.

  2. #2
    Join Date
    Mar 2012
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    1,360

    Default Re: Misclassified Independent Contractor Denied Unemployment for Tardiness

    Quote Quoting Irishred111
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    The Board of Review claimed that I did not have sufficient reasoning for filing the claim late and they reversed the referee's decision and also wrote "The claimant's appeal to the referee is dismissed for lack of jurisdiction." How is that possible? How can the referee have lack of jurisdiction?

    I then received a second letter stating that they reviewed the tape from the hearing, which why they didn't do so in the first place is beyond me. The reasoning was the same, but the jurisdiction thing is baffling to me. But in NEITHER of the letters that the Board of Review sent did they mention anything about the misclassification.
    Of all that you wrote, this is the meat of why you aren't getting benefits.

    You were denied initially.

    The ALJ found good cause for late filing your appeal and awarded benefits.

    By the board saying you didn't have good cause to be late with your appeal, then the ALJ hearing should have never happened in the first place, and the initial decision takes affect again. That means the denial is put back in place.

    Had your appeal submission been on time or late for good cause then the ALJ would have had jurisdicition. By the board saying that you didn't have good cause, then the ALJ couldn't take jurisdiction and the hearing should have never happened, never got into the tardiness issues, never should have produced a decision in your favor. It's as though it never happened.

    If you're going to proceed in the appeals process, that is the only thing you need to get changed. Have the ALJ's decision regarding the late filing reinstated.

  3. #3
    Join Date
    Mar 2015
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    7

    Default Re: Misclassified Independent Contractor Denied Unemployment for Tardiness

    How would one go about doing that? My main concern is getting the misclassification on file.

  4. #4
    Join Date
    Oct 2006
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    16,474

    Default Re: Misclassified Independent Contractor Denied Unemployment for Tardiness

    Quote Quoting Irishred111
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    How would one go about doing that? My main concern is getting the misclassification on file.
    The misclassification is already on file. Its already a "done deal". The current denial of unemployment has nothing to do with that.

  5. #5
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    Jan 2015
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    1,142

    Default Re: Misclassified Independent Contractor Denied Unemployment for Tardiness

    Once it is determined that the employee has been misclassified as a 1099, that's a done deal. It no longer has anything to do with your claim situation. From this point on, the claimant is "monetarily eligible" for benefits (with the money coming from the general unemployment fund) and the only issue they are working on WITH THE CLAIMANT is their eligibility otherwise. And this has very little to do with the employer's misclassification.

    What they do with the former employer in regard to the misclassification has nothing to do with whether the claim will be approved, and the claimant is not notified of any action the department may or may not take toward the employer regarding his tax liabilities.

    While it is true that if you had been a 1099 you would have been free to set your own hours, therefore could not be determined to be absent or tardy, you are going to be considered a regular employee, and held to the same standard of reasonable conduct as if you had been classified correctly. And being late or being tardy is not acceptable when you're a regular employee, and if you knew that and did it anyway, they very well could call it misconduct and deny your claim.

  6. #6
    Join Date
    Mar 2015
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    7

    Default Re: Misclassified Independent Contractor Denied Unemployment for Tardiness

    The misclassification was not determined until well after the termination, as I stated, I was terminated as a 1099, then later found to be an actual employee. Ironically, he still provided a 1099-MISC for 2014. That was why I had asked if at the time of termination I was still a 1099, I shouldn't be considered an employee after the fact and that used as a valid reason for termination. The boss was aware of my situation. He knew I had explained to him various times that my in and out times would fluctuate for certain reasons. The reason the Ref stated he condoned it was because in his initial claim to UI, he stated a "handful" of times being tardy with verbal warnings that never occurred, and when he rebutted, he then expanded it to more than a handful. When I filed with Wage and Hour, my time frame goes back even farther than his times do and it shows he condoned it for an extensive amount of time, not just a handful of times. He kept no documentation of "verbal warnings", and told the ref during the appeal that the last warning was given on the day of my termination. But he will soon have bigger fish to fry. Karma does work in mysterious ways. At least the clients will be protected, which was main reason I stayed as long as I did. But I digress...

  7. #7
    Join Date
    Oct 2006
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    16,474

    Default Re: Misclassified Independent Contractor Denied Unemployment for Tardiness

    Quote Quoting Irishred111
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    The misclassification was not determined until well after the termination, as I stated, I was terminated as a 1099, then later found to be an actual employee. Ironically, he still provided a 1099-MISC for 2014. That was why I had asked if at the time of termination I was still a 1099, I shouldn't be considered an employee after the fact and that used as a valid reason for termination. The boss was aware of my situation. He knew I had explained to him various times that my in and out times would fluctuate for certain reasons. The reason the Ref stated he condoned it was because in his initial claim to UI, he stated a "handful" of times being tardy with verbal warnings that never occurred, and when he rebutted, he then expanded it to more than a handful. When I filed with Wage and Hour, my time frame goes back even farther than his times do and it shows he condoned it for an extensive amount of time, not just a handful of times. He kept no documentation of "verbal warnings", and told the ref during the appeal that the last warning was given on the day of my termination. But he will soon have bigger fish to fry. Karma does work in mysterious ways. At least the clients will be protected, which was main reason I stayed as long as I did. But I digress...
    You are getting way too hung up on the misguided notion that you were "terminated as a 1099". Once you were found to be an employee, that made you an employee going back to the first date that you started working for the guy.

    The only questions now are whether or not you were too late for the appeal, and whether or not he terminated you for "cause". It no longer has anything to do with your classification.

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