working for a year, employer has had several verbal altercations with me. physically and verbaly assaulted me. used sexual innuendo and abusive language. terminated employement with me, refusing to pay monies owed.
Employment / Labor Attorney
To start out with, you need to understand that there is no such thing as a "1099 employee." That term is an oxymoron. You are either an independent contractor being paid and reported using a 1099 form, or you are an employee. One is mutually exclusive of the other.
If you are properly characterized as an independent contractor, your remedies are limited and different than if you were really an employee improperly characterized as an independent contractor.
As an independent contractor, most of the laws that protect employees against discrimination and harassment will not apply to you. They generally (but not always) apply only to employees. Your remedy for physical assault is a lawsuit for battery, and your remedy for not getting paid is a lawsuit for breach of contract.
If you have been improperly characterized as an independent contractor instead of an employee, you may have claims not only for the harassment and the pay issue, but you may have other pay issues because you may not have been given proper breaks, meal periods, overtime, and the employer has not properly withheld and contributed to various places.
The analysis of whether you are an independent contractor or employee is very fact intensive. It would be a good idea for you to share the specifics of your job with an employment attorneys to determine your best approach. It is therefore important that you locate and consult with an experienced employment law attorney as soon as possible to explore your facts and determine your options. I would suggest you look either on this site in the Find a Lawyer section, or go to www.cela.org, the home page for the California Employment Lawyers Association, an organization whose members are dedicated to the representation of employees against their employers.
Good luck to you.
This answer should not be construed to create any attorney-client relationship. Such a relationship can be formed only through the mutual execution of an attorney-client agreement. The answer given is based on the extremely limited facts provided and the proper course of action might change significantly with the introduction of other facts. All who read this answer should not rely on the answer to govern their conduct. Please seek the advice of competent counsel after disclosing all facts to that attorney. This answer is intended for California residents only. The answering party is only licensed to practice in the State of California.
Employment / Labor Attorney
The words, "1099 employee" are an oxymoron. They contradict each other and do not really exist. Either you were a 1099 independent contractor or you were an employee who must be paid a wage with taxes withheld. The chances are very good that you were misclassified and were subject to various labor law rights but that is not what you posted abut.
No one has the right to be physically assaulted. If you were an employee, you did not have the right to be sexually harassed. Whether the abusive language rises to the level of sexual harassment needs to be explored with an attorney. If you are owed money, that too needs to be explored with an attorney. Apparently, you have a number of issues which need to be discussed to find out what you may be owed and how to go about trying to collect the damages owed to you.
You could seek an attorney by using the "Find a Lawyer" function on Avvo or by going to the website for the California Employment Lawyers Association and search for a CELA member in your area.
They say you get what you pay for, and this response is free, so take it for what it is worth. This is my opinion based on very limited information. My opinion should not be taken as legal advice. For true advice, we would require a confidential consultation where I would ask you questions and get your complete story. This is a public forum, so remember, nothing here is confidential. Nor am I your attorney. I do not know who you are and you have not hired me to provide any legal service. To do so would require us to meet and sign written retainer agreement. My responses are intended for general information only.
Employment / Labor Attorney
Mr. Pedersen and Mr. Kirschbaum have given you excellent guidance. I write to give you some tools to help you figure out if you were an independent contractor or an employee.
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.
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.
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@MikaSpencer * * * twitter.com/MikaSpencer * * * PLEASE READ: 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.