Comments on: SR: 2 Pay Questions and an Unemployment Problem

By: Olivia

Olivia — Thu, 16 Sep 2010 15:25:48 +0000

Regarding the monthly pay scenario - we also pay monthly, and I've found the best & most fair way to calculate is a daily rate based on total annual pay/total annual work days. Otherwise, each month has a different number of work days, so the rate is different based on which month you're in. (For example, only 20 workdays in February, 23 in March this year)
After getting the daily rate, I subtract #days missed from monthly pay.

Re: unemployment: I hate to think that you won't fight it...it may be what the employer is counting on.

By: Anonymous

Anonymous — Thu, 02 Sep 2010 19:42:20 +0000

On the employee/independent contractor question:

The IRS has a set of criteria that they use to determine if someone is an independent contractor or employee. Under this criteria, it is much harder to be classified as an independent contractor. Here is a link to a site I found listing them out:

http://tinyurl.com/66vhjg

It's quite likely that you should have been classified as an employee and the employer doesn't want to admit to this as then the IRS can go after them for FICA/Medicare as well as FUTA/SUTA.

By: Anonymous

Anonymous — Mon, 30 Aug 2010 17:20:45 +0000

For the unemployment/Contract for Independant Contractor question:

Technically, an independant or 1099contractor would bill or invoice their hours to the company to be paid in the same way that a company would pay a vendor or client. There are no payroll taxes taken from the pay, and there is typically no specific end date. The 1099 form should be approved by HR or the Legal Department.

To be an Employee (Even a "Contract Employe"), they would need to deduct standard payroll taxes and report out your W2.

Even without timesheet records, their tax and payroll records should determine what type of work you were doing.

Good Luck!

By: Ask a Manager

Ask a Manager — Sat, 28 Aug 2010 05:47:57 +0000

Don't pay the money back unless you're ordered to. Even if you don't put that much time into it, you'll probably win. (Unemployment tends to favor the employee.)

Also, you may be able to get a phone hearing rather than having to show up in person.

By: Anonymous

Anonymous — Sat, 28 Aug 2010 04:47:11 +0000

Hello. I am the submitter of the question regarding unemployment and employee vs independent contractor status. Thank you guys so much for your responses. I really appreciate it. You guys rock.

As a followup question:

I am currently wondering if I should pay back the money. I just wonder if seeking legal help, digging up necessary documentation, taking time off work, stressing out, etc. is really worth the $800 I collected in unemployment. I almost think it would be a better investment of time/energy/money spent paying back the funds and seeking out a job where I can really make a career for myself (rather than the retail job I am currently at now.) And I would just chalk this up to a learning experience and them being !@@$$%%$#.

I had never collected unemployment prior to this, and I hope I never have to do it again.

By: TBaker14

TBaker14 — Fri, 27 Aug 2010 14:49:39 +0000

…or, hold his pay for September and then pay him at the end of October…

By: TBaker14

TBaker14 — Fri, 27 Aug 2010 14:46:18 +0000

Unpaid Leave...

Let's say he's leaving mid-September ariving back mid-Oct...he leaves and then receives his regular pay at the end of Sept. Then he doesn't get paid for October...then he returns and doesn't receive another payment until the end of November. Basically, he's not getting paid for the month of October. If he's OK with that, it would be the easiest.

By: Mike

Mike — Fri, 27 Aug 2010 14:09:59 +0000

With regards to the second question where you say that pay cannot be deducted, do you literally mean just pay, or does that apply to other compensation such as vacation time or paid time off?

By: Interviewer

Interviewer — Fri, 27 Aug 2010 13:48:17 +0000

To the person wondering about unemployment: the employer will state what they think their side is (that you weren't an ee, but an ic). The state will ask them for documentation to prove it. If they don't have it, the state should put more stock in your side of the story (but I have seen stranger things happen). Be honest, tell them what your duties were, who you reported to, how you were paid, how you turned in time sheets, etc. Answer every question that you are asked directly and honestly. Don't bring up emotional tangents or horror stories about the office.

Any paperwork you can provide - copies of paystubs, business cards, letters from clients, emails from the company, a copy of the handbook acknowledgement form - that will back up your story will help.

Just know that they are disputing it, so it's on them to prove you're wrong. I really wonder why they're fighting it so long after the fact, but good luck to you.

By: Anonymous

Anonymous — Fri, 27 Aug 2010 13:09:31 +0000

To the unemployment person, gather up any documentation you have such as old timesheets, emails that back up your story, etc and call the hearing officer to ask how to submit your own documentation, or call witnesses (ie ex co workers). It's really more your evidence vs. theirs and who is more credible. In my experience if they're caught lying or changing their story their chances of success plummet.