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Any information anyone can give me regarding 1099 employees/ contractor would be awesome. Do they have any rights?

Concord, CA |

I work for a construction company and my boss never pays his guys on time. He makes them drive out to the office only to send them home. He says that because they are 1099 employees they have no rights. Do they have to pay taxes? and is it legal for their checks not to show up on time?

Attorney Answers 5


This an excellent question you have posed which involves a number of different laws, both State and Federal.

On the Federal side, there is a law called the Fair Labor Standards Act ("FLSA") which has provisions which require certain minimum payments for labor which has been performed. Independent contractors do not typically receive the full protections of the FLSA, but the determination of whether you are, in fact, an "independent contractor" requires much more than your employer simply labeling you as one. The employer may call you an independent contractor, when in fact you are not. I have been involved in many lawsuits where this has been the case.

On the State level, there a number of CA "pay day" laws which serve to protect employees and ensure them timely payment of earned wages. I am not licensed in CA and can only recommend that you speak with a competent CA employment attorney on this issue who has experience in litigating wage issues.

I hope this response is helpful. If so, please take a second and click the “helpful” button below; and if you were really impressed with the answer, you can click the “best answer” button! If you need any further guidance about your situation, do not hesitate to contact me. Thank you and best of luck.

Judd G. Millman
606 Bosley Avenue, Suite 3B
Towson, Maryland 21204
Telephone: (410) 522-1020
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More facts are needed about the workers' duties, control by the company of their work, etc. to determine whether they are employees or independent contractors. Contact an experienced employment law attorney such as myself to discuss the facts.

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You may be an employee, but there are a lot of issues that need to be discussed. One option that you may have is to file a claim with the California Labor Commissioner, which can order back pay and penalties. The link below shows how to do so. 510-208-5500. This answer does not create an attorney-client relationship. It is not legal advice, because it is only of a general nature. Please contact a lawyer qualified in your jurisdiction to discuss your situation in confidence, using your factual details. Avvo answers are only general legal responses. Item 9 of's Terms and Conditions are incorporated in this disclaimer as though it were printed here.

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Ms. Karila is absolutely correct. I write separately only to point out that, in California, you are presumed to be an employee, and the employer must prove that you are a contractor. The main test is one of control. If your employer tells you when to show up, where to go, what job to work on, when to leave, and provides your tools, these are all indicia (although not necessarily proof) of the employment relationship.

Good luck in your legal matter.

Craig T. Byrnes

Disclaimer: Please be aware that I am not offering legal advice, nor forming an attorney-client relationship with you. I am not representing you, nor doing anything to protect your legal rights. If you believe that you have suffered a legal wrong, take action before any statute or limitations expires, or your right to do so may be lost forever. Good luck in your legal matter.

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I urge you to consult with one or more experienced employment law attorneys with whom you can discuss the details of your situation. It sounds like you and the other employees are being taken advantage of. As individuals and as a group, there may be legal remedies that will provide compensation for you. To find a plaintiffs employment attorney in California, please go to the web site of the California Employment Lawyers Association (CELA). CELA is the largest and most influential bar association in the state for attorneys who represent working people. The web site is Click on "Find a CELA Member" and you can search by location and practice area.

Other responses already pointed out the issue of whether you are employees or independent contractors. The main issue in determining who is an employee and who is an independent contractor is who controls your work. The general rule is that a person is an independent contractor if the employer has the right to control or direct the RESULTS of the work but not HOW the work is done or even WHAT work is done.

Many employers misclassify workers as independent contractors and pay them as "1099 employees" when in fact they should be classified and paid as regular W-2 employees. Employers receive a substantial benefit from doing this, but there is NO benefit to the workers. If you are wrongly classified as an independent contractor instead of an employee, you will not be eligible for many benefits of employment or your eligibility will be reduced. Areas affected include the right to:

– be paid for all hours worked or controlled by the employer;
– the legal minimum wage;
– overtime pay;
– rest and meal breaks;
– workers' compensation insurance;
– Social Security contributions;
– unemployment benefits;
– state disability benefits;
– employer benefits such as vacation, sick leave, pension, medical insurance, etc.

Also, in some states, including California, employers are subject to a penalty if they misclassify employees as independent contractors (see below).

There are different ways to determine if a worker is an employee or independent contractor. Employers must comply with all relevant laws.

FEDERAL TAX LAW: The Internal Revenue Service (IRS) looks at three areas to determine a worker’s status:

Behavioral Control: This area considers instructions and training. If the employer has the right to direct or control your work, even if it does not exercise that right, you are an employee. Therefore, if your employer gives you detailed or extensive instructions on how to get the job done, you are probably an employee and not an independent contractor. These instructions might include when to do the work, or how and where to do it; what equipment or tools to use; who you can hire or not hire to help you; what supplies and services to buy, and/or where to buy them. If the employer trains you in required methods of doing the work or the procedures to get the work done, this is evidence the employer wants things done its way, which indicates you are an employee and not an independent contractor.

Financial Control: This area considers who has the right to direct and control the business, not just the work. The more of a financial or promotional investment you have made in the work, the more likely you are an independent contractor. However, there is no requirement for an investment in order to meet the definition of independent contractor. If you incur expenses in performing the work but are not completely reimbursed, you are more likely to be an independent contractor rather than an employee, especially if these expenses are high. If you have the chance to make a profit or loss on the work, you are probably in business for yourself and therefore an independent contractor.

(continued in Comment below)

*** All legal actions have time limits, called statutes of limitation. If you miss the deadline for filing your claim, you will lose the opportunity to pursue your case. Please consult with an experienced employment attorney as soon as possible to better preserve your rights. *** Marilynn Mika Spencer provides information on Avvo as a service to the public, primarily when general information may be of assistance. Avvo is not an appropriate forum for an in-depth response or a detailed analysis. These comments are for information only and should not be considered legal advice. Legal advice must pertain to specific, detailed facts. No attorney-client relationship is created based on this information exchange. *** Marilynn Mika Spencer is licensed to practice law before all state and federal courts in California, and can appear before administrative agencies throughout the country. She is eligible to represent clients in other states on a pro hac vice basis. ***

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Marilynn Mika Spencer

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(continued from Answer above) Relationship of the Parties: If you do not receive benefits such as medical coverage, vacation, or pension, you may be an employee or an independent contractor. However, if you receive benefits, you are probably an employee. If you are an employee, your employer must withhold income tax and the employee portion of Social Security and Medicare taxes. Your employer must pay Social Security, Medicare and unemployment (FUTA) taxes on the wages you earn. Your employer must give you an IRS Form W-2, Wage and Tax Statement, every year showing the amount of wages paid and taxes withheld from your pay. As an employee, you have the right to deduct unreimbursed business expenses from your taxes on IRS Schedule A if you itemized deductions and meet the other requirements established by the IRS. If you are an independent contractor, the employer must give you an IRS Form 1099-MISC Miscellaneous Income, to report what it has paid you. You must pay your own income tax and self-employment tax, and you may be required to make estimated tax payments during the year. You can deduct business expenses on IRS Schedule C of your income tax return. CALIFORNIA LAW: The main test in California is who has the right to direct and control the “manner and means” in which the job is performed. This is similar to the IRS’ Behavioral Control described above. California then looks at secondary factors, which include: Are the services provided on a long-term or repeating basis? Is the worker paid based on the time spent working? Are the services an integral part of the employer’s business? Does the employer establish the work hours? Does the employer determine how many hours will be worked? Does the employer dictate the order in which job tasks are to be performed? Does the worker spend all of his or her time working for one employer? Is the worker supervised? All of these factors tend to show the worker is an EMPLOYEE. Is the worker in a distinct occupation or trade? Are the workers’ services available to the general public? Can the worker hire, supervise and pay assistants? Did the worker make a substantial investment in facilities or services? Does the worker do the job without supervision? Is the worker highly skilled or working in a specialized field? Does the worker supply the tools and other materials used to do the job? Does the worker provide the location in which the work is performed? Is the worker paid at the end of the project? All of these factors tend to show the worker is an INDEPENDENT CONTRACTOR. Also under California law, an employer can be fined for “willfully misclassifying” an employee as an independent contractor. The amount of the fine ranges from $5,000 to $15,000 per violation. If there is a “pattern and practice” of willful misclassification, the fine can increase to $25,000 per violation.

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