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  1. #1

    Angry If My Employer Won't Convert Me to W2 After Being Promised, Can I Take Action

    My question involves independent contractors in the state of: North Carolina

    Here's some background on my situation:

    I relocated for my previous job and within months we started having massive lay-offs. I made it through three rounds and was told I didn't have anything to worry about because they wanted to keep me. Another round of lay-offs came and went, and I got nervous, so when my current employer called in response to my resume, I was all ears. I had just moved here and didn't know anyone in my current location, so I wanted to take advantage of the opportunity he was offering.

    I'm in sales and recruiting and the new employer really wanted me to come work for him, so I did, and put the anxiety of possibly being laid off behind me. At first, he seemed like a person I wouldn't normally work for because of a lack of organization and also because he had all of these unrelated "pyramid scheme" projects of which I wanted no part. I checked out the recruiting side of his business and everything checked out, so I took the job.

    He said I was going to be a 1099 employee for 90 days and then he would convert me to a W2 with benefits, etc. It has been eight months and I am still a 1099. My contract states that I get paid a base salary of $2500 which is paid every two weeks (he actually wrote "bi-monthly" in the contract which means every two months, not twice a month) and there is no mention of how my commissions are paid. I feel like he's taking advantage of the 1099 status.

    If I don't have it in writing that he was supposed to convert me to W2 after 90 days, can I take any action?

    There's another element to this. Another person, who I thought worked with us up until a couple of months ago (when I found out from him that he hates my boss and is a totally separate entity) has an account with a company whom I work with regularly. I got a deal done and we're set to get a payment of $50k, of which I get 10%. The other person is not going to give my boss any of that money because it's his account and he's staying as far away as possible from him. My boss is now threatening to sue him and ME if he finds out I am trying to get paid by the other guy without him getting paid on it. It's a huge mess...

    Since I'm technically still an independent contractor, does my boss have any grounds for suing me?

    I can clarify all of this if anyone has specific questions. It's really bizarre and I need to quit, but I need to find a new job first. I also want to get paid the $20-30k in commissions I'm supposed to make over the next few months.

  2. #2
    Join Date
    Sep 2005
    Behind a Desk

    Default Re: If My Employer Won't Convert Me to W2 After Being Promised, Can I Take Action

    You've chosen to continue working as an independent contractor.

    If you believe you are misclassified, you can make a wage complaint. If you believe yourself properly classified, but still want to be hired on as a regular employee, start talking to your employer.

    You can work for more than one company as an independent contractor, as long as your contracts don't provide otherwise and as long as you're not misappropriating inside information to poach your clients' customers. Quite obviously, if you were employed by your employer, you could be fired for misappropriating a customer; it might also constitute embezzlement. As an independent contractor your employer can terminate your contract at any time (unless your written contract provides otherwise) and can sue you for poaching customers.

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