Welcome to Law-Forums.org!   

Advertisments:




Sponsor Links:

Discount Legal Forms
Discounted Legal Texts


1099 And Nys Unemployment

Workers Compensation Law Discussion

1099 And Nys Unemployment

Postby Baudier » Wed Nov 16, 2016 4:37 am

s About Taxes)/1099 and NYS unemployment Advertisement Expert: John L. Tidwell - 11/5/2009 I have worked the last 2 years for an individual as a 1099 contractor(administrative assistant); she submitted for my monthly salary through her expense reports for the firm she consulted for.  My question is she is now closing up shop will I be eligible for unemployment in NYS?  Prior to this I was a W-2 employee, can I collect from that past employment?  This is all a shock to me and possibly the worst time in our history to be unemployed.  She did have me sign a contract and set up my hourly wage, but that I would be responsible for all taxes and health insurance.  Am I now screwed with respect to unemployment benefits.  Mind you I make less then 44K annually.

ANSWER: Ms. Klein:

Your employer can not make you sign away your right to be treated as an employee.  You may have sign a contract but is the contract legal.  For instance, you worked as an administrative assistant.  Therefore you worked for her under her direction an control.  She told you where to go, what you could and could not do, in other words she "bossed" you around.  That mere controlling act in all 51 states makes you an employee and no fancy contract can take that right away.

Therefore, when she lets you go, proceed to the nearest unemployment claims office or career center or call center and file a claim.  Even thought your employer may not have reported your wages you still have the right to file a claim and "protest" the fact that no wages are on file for you.  This type of claim is called in the unemployment field as a "wage protest".  All workers in theses offices will know how to handle that type of claim.  It will take long for you to receive your benefits because an "auditor" will required to investigate your claim an make an independent assessment of the wages that should have been reported on you behalf.  Do not let anyone talk you out of this right.  The wages that your claim will be based on are 3rd %26 4th quarter of 2008 and the 1st %26 2nd of 2009.

Hopefully this will assist you and if you have any more question please ask me.  Also please let me know your out come.

John

---------- FOLLOW-UP ----------

John, But I paid the taxes on these wages...so wages are on file, yes?  I also reread the contract and it stated no minimum hours were set, but indeed verbally we agreed to set hours of minimum 30 per week and that I would work for her from 9a - 3:00p 5 days a week. I wish it didn't come down to this because I really enjoyed working for her and need her as a reference.

Was I stupid to agree to the contract?  Won't this be binding?  Apparently she had her lawyers create this so wouldn't that make it binding?  It specifically states that I am responsible for all taxes and cannot hold her accountable for unemployment claims per the contract below:

"(the “LLC”) is pleased to engage you as a consultant to perform certain administrative functions.  These functions shall include preparation of tax filings on behalf o the LLC and other needs as determined by the Managing Partner of the LLC and shall be on an “as-needed” basis without any minimum hours.   In full compensation for your services, the LLC will pay you at a rate of $25 per hour.  The LLC will pay you within ten(10) days of your presentation to the LLC of an appropriate invoice which details the date of services, a brief description of services rendered and duration of services(in hours or fractions thereof) for each date.  In addition, you will be entitled to reimbursement for any reasonable, pre-approved expenses incurred in the performance of services under this agreement, subject to your presentation of appropriate documentation.  As a consultant, you will be entitled to no other benefits, except as expressly set forth herein.   You agree at all times during the term of this agreement and thereafter, to hold in strictest confidence, and not to use, except for the benefit of the LLC to the extent necessary to perform your obligations to the LLC under this agreement, or to disclose to any person, firm, corporation or other entity without written authorization of the Managing Partner of the LLC, any confidential information of the LLC.  You further agree not to make copies of such confidential information except as authorized by the LLC.   You understand and agree that you are engaged by the LLC as an independent contractor and will not be deemed an employee, agent, partner, or joint venturer for any purpose and that nothing in this agreement or any other agreement between you and the LLC is intended or shall be construed to create such a relationship.  In addition, you understand and agree that the LLC will not withhold for taxes, and that you alone are responsible for compliance with all federal, state and local tax requirements relating to payments hereunder.  You will indemnify and hold the LLC harmless from and against any and all claims, liabilities, obligations, costs and expenses with regard to such requirements.   You may control the manner and means by which the duties under this agreement are to be accomplished; however, you acknowledge that you have no right or authority to enter into any contract or commitment on behalf o the LLC or to bind the LLC in any respect whatsoever.  This agreement and the relationship between you and the LLC may be terminated by either party at any time upon two weeks prior written notice.   Please confirm your agreement to the foregoing terms and conditions by signing below."

So I guess I really am screwed.
Baudier
 
Posts: 45
Joined: Thu Jan 16, 2014 9:24 am

1099 And Nys Unemployment

Postby Darrell » Fri Nov 18, 2016 1:39 pm

s About Taxes)/1099 and NYS unemployment Advertisement Expert: John L. Tidwell - 11/5/2009 I have worked the last 2 years for an individual as a 1099 contractor(administrative assistant); she submitted for my monthly salary through her expense reports for the firm she consulted for.  My question is she is now closing up shop will I be eligible for unemployment in NYS?  Prior to this I was a W-2 employee, can I collect from that past employment?  This is all a shock to me and possibly the worst time in our history to be unemployed.  She did have me sign a contract and set up my hourly wage, but that I would be responsible for all taxes and health insurance.  Am I now screwed with respect to unemployment benefits.  Mind you I make less then 44K annually.

ANSWER: Ms. Klein:

Your employer can not make you sign away your right to be treated as an employee.  You may have sign a contract but is the contract legal.  For instance, you worked as an administrative assistant.  Therefore you worked for her under her direction an control.  She told you where to go, what you could and could not do, in other words she "bossed" you around.  That mere controlling act in all 51 states makes you an employee and no fancy contract can take that right away.

Therefore, when she lets you go, proceed to the nearest unemployment claims office or career center or call center and file a claim.  Even thought your employer may not have reported your wages you still have the right to file a claim and "protest" the fact that no wages are on file for you.  This type of claim is called in the unemployment field as a "wage protest".  All workers in theses offices will know how to handle that type of claim.  It will take long for you to receive your benefits because an "auditor" will required to investigate your claim an make an independent assessment of the wages that should have been reported on you behalf.  Do not let anyone talk you out of this right.  The wages that your claim will be based on are 3rd %26 4th quarter of 2008 and the 1st %26 2nd of 2009.

Hopefully this will assist you and if you have any more question please ask me.  Also please let me know your out come.

John

---------- FOLLOW-UP ----------

John, But I paid the taxes on these wages...so wages are on file, yes?  I also reread the contract and it stated no minimum hours were set, but indeed verbally we agreed to set hours of minimum 30 per week and that I would work for her from 9a - 3:00p 5 days a week. I wish it didn't come down to this because I really enjoyed working for her and need her as a reference.

Was I stupid to agree to the contract?  Won't this be binding?  Apparently she had her lawyers create this so wouldn't that make it binding?  It specifically states that I am responsible for all taxes and cannot hold her accountable for unemployment claims per the contract below:

"(the “LLC”) is pleased to engage you as a consultant to perform certain administrative functions.  These functions shall include preparation of tax filings on behalf o the LLC and other needs as determined by the Managing Partner of the LLC and shall be on an “as-needed” basis without any minimum hours.   In full compensation for your services, the LLC will pay you at a rate of $25 per hour.  The LLC will pay you within ten(10) days of your presentation to the LLC of an appropriate invoice which details the date of services, a brief description of services rendered and duration of services(in hours or fractions thereof) for each date.  In addition, you will be entitled to reimbursement for any reasonable, pre-approved expenses incurred in the performance of services under this agreement, subject to your presentation of appropriate documentation.  As a consultant, you will be entitled to no other benefits, except as expressly set forth herein.   You agree at all times during the term of this agreement and thereafter, to hold in strictest confidence, and not to use, except for the benefit of the LLC to the extent necessary to perform your obligations to the LLC under this agreement, or to disclose to any person, firm, corporation or other entity without written authorization of the Managing Partner of the LLC, any confidential information of the LLC.  You further agree not to make copies of such confidential information except as authorized by the LLC.   You understand and agree that you are engaged by the LLC as an independent contractor and will not be deemed an employee, agent, partner, or joint venturer for any purpose and that nothing in this agreement or any other agreement between you and the LLC is intended or shall be construed to create such a relationship.  In addition, you understand and agree that the LLC will not withhold for taxes, and that you alone are responsible for compliance with all federal, state and local tax requirements relating to payments hereunder.  You will indemnify and hold the LLC harmless from and against any and all claims, liabilities, obligations, costs and expenses with regard to such requirements.   You may control the manner and means by which the duties under this agreement are to be accomplished; however, you acknowledge that you have no right or authority to enter into any contract or commitment on behalf o the LLC or to bind the LLC in any respect whatsoever.  This agreement and the relationship between you and the LLC may be terminated by either party at any time upon two weeks prior written notice.   Please confirm your agreement to the foregoing terms and conditions by signing below."

So I guess I really am screwed.
Darrell
 
Posts: 53
Joined: Wed Jan 08, 2014 1:59 am

1099 And Nys Unemployment

Postby Justino » Sat Nov 19, 2016 12:51 am

Ms. Klein:

I assume that you have not file unemployment tax reports on your wages/earning.  I also assume that you have reported your wages/earnings for city/state/ and federal income tax purposes.

With that said, the contract does not state where your services were to be performed, again, I assume that the LLC provided you an office with a desk, telephone, paper an all the other necessary item need to perform your task.  I also assume that you may have answered the phone and when you did you it was in the name of the LLC that you were conducting business on their phone, letterheads, and any other task you performed while you were "on the clock".  

These above mention items are the control and direction that you would have followed in-order to work for this company. I know that you are in a difficult position, however, so many companies believe that they can work people and not pay their fair share of taxes like unemployment and workers compensation.  I worked employer compliance(auditor) for almost 30 years and observed these types of contract.  The contracts leave out where the work is performed.  Some work that can not be contracted out is being an assistant and/or secretary.  You are always being asked to do something and it changes from minute to minute.

It is your choice, however, with my experience I believe that you are entitled to unemployment benefits.

John

PS.

Webb address for filing a claim:http://www.labor.state.ny.us/ui/how_to_file_claim.shtm
Justino
 
Posts: 39
Joined: Sun Apr 06, 2014 10:52 pm


Return to Workers Compensation

 


  • Related topics
    Replies
    Views
    Last post