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Can salon owners make there hair stylists switch to a 1099 from a w2? They told me I have no choice, is this true?

New York, NY |

I work 4 days a week at a salon from morning till closing. My employer discussed switching me to a 1099 because they don't want to pay the taxes and told me I only work part time which is not true. I told them I don't agree with it and they have already given me two paychecks without the taxes being taken out. The owners tell me they don't want to close They say when I make more money, I can go back on a W2 or stay 1099. I know 1099 is a contractor but that is not my status there. They have a paper for me to sign stating that I am going to be 1099 for this month, etc. I know they want me to sign the paper that says I agree to this, if I refuse it could cost me my job or I can be made to quit by not giving me any clients. I don't understand why there is always a problem with salon employers

I work on commission like most of the hairstylists. They also don't want any employees to talk about what's going on. So far myself and another hairstylist may be now switched 1099. The other stylist is ready to quit.

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Attorney answers 3

Posted

Your employer is just begging for trouble. New York, among other states, is becoming much more aggressive in going after employers who misclassify their workers. Your employers are opening themselves for civil and criminal charges.

There is no bright line that determines whether a worker is a 1099 independent contractor or a W-2 employee. However, the mere labeling of a worker as an independent contractor agreement does not mean the worker is an independent contractor.

It’s an oversimplification, but in essence a worker is a W-2 employee of an organization, if the worker is controlled by the organization, uses the organization’s facilities, and has little discretion in how and when he or she does the work.

Asker

Posted

That is what I thought since I am not a renter. I have to go by the rules of the salon and participate in every meeting or other aspects of the business while I am working there.

Asker

Posted

Thank you for answering my question.

Posted

Whether you can be classified as a 1099 worker depends on a variety of factors. Regular employees should receive a W-2. If they make you switch you should consult an attorney.

This answer does not constitute legal advice and you should contact an attorney to confirm or research further any statements made in this answer. Any statements of fact or law I have made in this answer pertain solely to New York State and should not be relied upon in any way in any other jurisdiction. Additionally, we also encourage you to reach out to us via Twitter (https://twitter.com/#!/employattorney) or Facebook (http://www.facebook.com/WhiteRicottaandMarks) if you have follow up questions as we do not monitor questions after providing an initial answer.

Posted

The determination as to whether you are a 1099 worker or a W-2 employee is not ultimately up to your employer, but rather, the Department of Labor. If your employer is requiring that you get paid in that manner, you should contact an attorney or the DOL.

This answer does not constitute legal advice and you should contact an attorney to confirm or research further any statements made in this answer. Any statements of fact or law I have made in this answer pertain solely to New York State and should not be relied upon in any way in any other jurisdiction. Additionally, we also encourage you to reach out to us via Twitter (https://twitter.com/#!/employattorney) or Facebook (http://www.facebook.com/WhiteRicottaandMarks) if you have follow up questions as we do not monitor questions after providing an initial answer.

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