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  1. #21
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    Nov 2013
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    Default Re: Can I Share My Pizza Delivery Guy

    I was addressing the assertion that a deliver person must be an employee because they deliver product for a restaurant. I have posted many posts on ICs vs. employee and in many states. The tests are mostly the same be they a state test or the IRS test.

    Just because someone provides a service to a business, it doesn't automatically make them an employee.

  2. #22
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    Default Re: Can I Share My Pizza Delivery Guy

    No, but employee is the default, no matter what the business. That's the law under the FLSA. Any worker is an employee until it's proven that they aren't, and the law says that while you can legally treat an IC as an employee, you can't treat an employee as an IC.

    So while it is true that no law says a delivery person must be an employee, it not only does not follow that a delivery person must be an IC, he's an employee until it's proven that he is not.

  3. #23
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    Default Re: Can I Share My Pizza Delivery Guy

    I'm an IC where I work. I know that I am an employee under the tests. So what? The law favors the classification of employee. I agree. But that doesn't make every person that works for a business an employee.

  4. #24
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    Default Re: Can I Share My Pizza Delivery Guy

    Um, legally? Yes it does. Unless you pass the test to qualify as an IC, you are an employee under Federal law.

    Just because you may be (mis)classified as an IC does not mean other people are automatically IC's. Rather, the reverse is true.l

  5. #25
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    Default Re: Can I Share My Pizza Delivery Guy

    Quote Quoting cbg
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    Just because you may be (mis)classified as an IC does not mean other people are automatically IC's. l
    I didn't say that.

    What I said is that depending on the construction of the business, someone may be an IC or an employee. In my case, I know that I am misclassified. But I am compensated for the misclassification. Do you think I should cut off my nose to spite my face?

  6. #26
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    Default Re: Can I Share My Pizza Delivery Guy

    I don't give a damn if you do or don't. I just want you to stop insisting that this poster's employees must be IC's just because you say so. Yes, it is possible for pizza delivery people to be IC's. That doesn't mean they all are. That doesn't mean this poster's are. Especially when he says they are employees.

    Why are you so invested in the classification of someone you don't even know?

  7. #27
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    Default Re: Can I Share My Pizza Delivery Guy

    Because when someone posts in the absolute, I don't think that is good advice. If this poster hired some delivery persons to deliver his produce, fine. They are employees if he says so. But that doesn't translate into every business as some have suggested.

  8. #28
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    Default Re: Can I Share My Pizza Delivery Guy

    Even when it does?

    What you are overlooking is what I said earlier - EVERY worker in EVERY industry and EVERY business, BY FEDERAL LAW, is an employee until they are proven not. That is true no matter how hard you deny it.

    If you can't understand that, you have no business answering wage and hour questions.

  9. #29
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    Oct 2014
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    7,394

    Default Re: Can I Share My Pizza Delivery Guy

    Quote Quoting budwad
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    OK, I will show you that your are wrong.
    You have done no such thing. You have misapplied the factors. The first factor, control, is one that embraces a number of things, and not just the those you listed. I cited to you three cases in which the courts said that the control factors were present. Of course each business is different, and some pizza delivery persons may well be indepedent contractors; those working food deliver for Uber come readily to mind there. But where they are working for a single shop, the chances are pretty good that the control factors will be present. As I said, I cited to you three cases where the judges said just that. So forgive me, but I'll take the word of judges on this over yours, a guy who is neither lawyer nor judge.

    The third test is also generally not met. Most pizza delivery persons in my experience are not in an independently established trade, occupation, profession, or business. They typically weren't running a delivery business for the pizza place prior to being hired, and typically are working for just the one pizza place. They are not running an independent business in which they advertise, solicit business, decide their own hours and methods of business — all the sorts of things that independent business people do. Instead, they show up at the one pizza place at the start of the shift at a time the store assigns them to show up, they get some pizzas with addresses to deliver, they deliver them, and return for more pizzas until their shift is over. That is not an independent business. That looks much more like an employee.

    You have to meet ALL 3 in NJ to be an independent contractor. The first and third in many instances won't be met; though as I say, it is certainly possible that all three would be met in some instances.


    Quote Quoting budwad
    View Post
    I'm an IC where I work. I know that I am an employee under the tests. So what?
    Then you are not an independent contractor. You are an employee and your employer has misclassified you. If you meet the requirements under the statute/common law as an employee the employer MUST treat you as an employee. It is not optional. The employer must withhold pay federal employment tax and unemployment tax with respect ot you if you meet the tests. I know that first hand: I made employment tax assessments when I was at the IRS and no employer ever won an appeal of that saying "sure, we meet the tests for these people being employees but we don't have to pay because we decided they are independent contractors." Nor would that argument work to get the employer out of workman's comp requirements, state unemployment tax requirements, nor would it get the employer out of liability for torts that his employee has committed.

    A business may, on the other hand, decide to treat someone who does qualify as an independent contractor as an employee. There is no law against that. So you are correct, the law tends to favor classification of employee.

    It is like speeding. You know lots of people speed, but just because lots of people speed doesn't make it legal. If a cop pulls you over for speeding, you don't get out of it by saying "but every one else did it." If you speed, you are violating the law. On the other hand, you can go slower than the speed limit (though perhaps not super slow) and you won't get a ticket. The law favors people going under the speed limit rather than over, just as it tends to favor people being employees over independent contractors.

    Your employer is breaking the law and doing you a disservice if you are correct that you meet the tests for being an employee. You might want to get that rectified. Or not, if you like paying more tax than you are required to pay.


    Quote Quoting budwad
    View Post
    Because when someone posts in the absolute, I don't think that is good advice. If this poster hired some delivery persons to deliver his produce, fine. They are employees if he says so. But that doesn't translate into every business as some have suggested.
    No one here has said that every pizza delivery person is an employee. Indeed, I have repeatedly said that some probably are not. On the other hand, until now, your posts were the ones that seemed to be striking the absolute position that all of them would qualify as independent contractors. And I have shown 3 cases, each in different states, in which they were in fact held to be employees and not independent contractors. In my experience, that is the result you will get in more cases than not.

    But let's be clear: if the test for being an employee are met, they ARE employees regardless of what label the employer decides to put on the arrangement. The employer cannot make it an independent contractor arrangement simply by calling it that. Sure, there are a lot of businesses that either intentionally or mistakenly have misclassified their employees as independent contractors. Just like speeding, the fact that a number of people are breaking the law doesn't make it legal and doesn't help the business when it gets caught by one of the several agencies that have an interest in employment classification.

  10. #30
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    Default Re: Can I Share My Pizza Delivery Guy

    Quote Quoting Taxing Matters
    View Post

    Your employer is breaking the law and doing you a disservice if you are correct that you meet the tests for being an employee. You might want to get that rectified. Or not, if you like paying more tax than you are required to pay.
    If I were to rectified my classification, my salary (or contract payments) would be cut by at least 2/3 and perhaps have my contract terminated. Or I would have to quit for lack of income from this job. I went back to work because the deal was too good to pass up.

    I went back to work after my retirement from 45 years of self-employment. I'm no stranger to paying both sides of SS or paying estimated quarterly income tax or providing my own insurances and funding my retirement accounts.

    What this company offered me and what they pay me is far in excess of what the employees that do the same job (including all the benefits) are paid. It covers all the taxes I have to pay and then some. Why on earth would I want to rectify this by insisting that they make me an employee for the sake of what exactly; that they comply with the law?

    The chances of any agency (state or federal) knowing of the misclassification are about the same odds as me winning the lottery. That is the situation for millions of business. That is a reality for those that are misclassified but are paid high contract rates as an IC.

    I have no legal exposure in this arraignment. The feds and the state get what is owed to them based on my income as a self-employed person. The company is the one with legal exposure. But that works in my favor when and if the time comes to use the leverage.

    Whether it is right or wrong, it works for me and I am not altruistic enough to want ever law to be followed to the letter.

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