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4 Answers

Can my employer pay me as a 1099 employee?

Asked by: lpliskin 979 views YA Discussion

My wife works Mon through Fri. 7am to 1 at a pet resort with dogs boarding and daycare dogs. Her employer informed her that she is a 1099 contract employee and is responsible for self employment taxes and that they do not provide any benefits. The no benefits part is ok because this is just a job for her to have some money of her own, but I am not sure if they can pay all their employees as 1099 workers. Is this legal? Can they do that?

How others found here:

  • 1099 employee can\t use your equipment
  • what do if my employer paid me on a 1099
  • salary and be 1099

4 Answers



  1. Wayne Z on Jun 30, 2012 Reply

    No.

    If she works the hours that they assign and using their equipment, she should be treated as an employee, have taxes withheld and be issued a W2 at the end of year.

    One option is to file an SS-8 with the IRS and have them determine whether or not she is a contractor or employee. Unfortunately, people who turn their employer in to the IRS have a tendency to get fired even when the employer is breaking the law.

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  2. A Hunch on Jun 30, 2012 Reply

    PART of determining if she is an independent contractor is based on who determines the hours and whose equipment she uses. This is not the determining factor.
    - I 100% know I’m an independent contractor but my clients determine my hours (I fly across the country to see them and the concept is ridiculous that I would “chose” the hours/days I work; I work when they are available for me to work).
    - Again, I know I’m 100% an independent contractor and I use my equipment and THEIR equipment. (Am I going to be dragging stuff across the country that they have available for me to use – that would be silly).

    Is she an IC or an employee?
    - she works these hours because those are the hours the company needs her to work = that does not make her an employee
    - she using their equipment because she isn’t bringing garden hoses, pickup baggies, and doggie toys each time she goes to work = that does not make her an employee.

    When she is there, how much freedom does she have vs oversight = that determines if she is an IC or EE?
    - do they tell her exactly how to clean the kennels and then checks to see if it is exactly the way they want it?
    - do they tell her what does she is going to work with at what time of day and what she is suppose to do with those dogs?
    IF they are managing her workload while she is there, she is an employee.
    IF she works independently and they aren’t “managing” her, she would be an independent contractor.

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  3. StephenWeinstein on Jun 30, 2012 Reply

    There is no such thing as a 1099 employee. There are W-2 employees and there are 1099 independent contractors. An “employee”, by definition, is a person who can be paid only as a W-2 worker and cannot be paid as a 1099 worker. A 1099 can only be used if the worker is NOT an employee.

    If they are independent contractors, then they are not employees, and they must be paid as 1099 workers, and not as employees of any kind.

    If they are employees, they they must be paid as a W-2 worker, not 1099′s.

    In either case, no one, at any company, can possibly be a 1099 employee. A person can only be either 1099 or an employee, but never both.

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  4. Tasha on Jun 30, 2012 Reply

    please trust me on this i recently went from being an independent contract to a business owner! look on irs at contractor vs employee if they are chosing her hrs she is an employee. Tell her not to go to work one day LOL and see if they say anything she could technically them she is allowed to chose her own hrs as a contractor if they want to treat her like one ( dont really do that but i would lay the law out to them real simply as basically they can try and at the end of the year if they didnt withhold your taxes they will be liable to pay them and they are not recoverable from you so i would point that out to them

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