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Joseph
Joseph, Lawyer
Category: California Employment Law
Satisfied Customers: 5222
Experience:  Extensive experience representing employees and management
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If I havent worked at a job that I received a w2 from for

Customer Question

If I haven't worked at a job that I received a w2 from for 4 years . I have just been doing housekeeping can I file for unemployment if the last housekeeping job that I had which was 4 days a week for an extremely wealthy family large home, I was paid $100 a day and was suppose to work 12-4 but because of the size of the home and the laundry, and the fact that I am a perfectionist I always worked 6-7 hours a day but was still only paid the $100. This went on for 20 months 2/11-10/12. They paid me in cash because they did not want to pay in taxes etc. there never was any written job ap they didn't ask or have my ss# XXXXX even my address. I am a single 60 yr old that busted my butt for this ungratefull woman who let me go for NO JUST REASON other than her hormonal mood and left me with no income and she knew I lived week to week and her SCREAMING AT ME over the phone out of control no one should be subject to that. It's a very complicated story but I am 110% sure that if I do have the legal right to take her to court I would win no question . The question is this can I file a suit against her unjustified discharge? I am still 4 months later unemployed and very depressed because of this it has destroyed me financially. If I do not have any legal right can I collect unemployment? Or can I report her to the labor board for her not paying taxes in she has been doing this for her past housekeeper who worked for her for 6 yrs and I am sure she is doing it with the new hire.
Submitted: 1 year ago.
Category: California Employment Law
Expert:  Joseph replied 1 year ago.
Unfortunately, if you are hired as an independent contractor and not an employee, you don't have a right to either unemployment benefits or to any suit for wrongful termination due to discrimination based on a protected characteristic.

You should file a wagre claim with the labor board for your unpaid wages, as well as request a determination as to whether you should have been treated as an employee instead of an indepent contractor.

You can file a wage claim using the information available online here:

http://www.dir.ca.gov/dlse/howtofilewageclaim.htm

Unfortunately, since you were paid in cash, and no deductions were made form your pay for payroll taxes, etc., you wouldn't have the basis of wages to collect unemployment.
Customer: replied 1 year ago.

Did you answer my question based on Texas law I see the catagory says California Employment law. My question applies to Texas and Federal law


What determines if you are considered contract labor or an employee?

Expert:  Joseph replied 1 year ago.
Yes, the same information applies, even though you are in Texas.

See the information available on the IRS site to determine whether you are an independent contractor and not an employee:

http://www.irs.gov/Businesses/Small-Businesses-&-Self-Employed/Independent-Contractor-%28Self-Employed%29-or-Employee%3F
Customer: replied 1 year ago.

Don't take this wrong way but I pay for Just answer service to get answers not referals to various websites. The question I would like an answer to is what determines if you are considered an employee or contract labor?

Expert:  Joseph replied 1 year ago.
I just gave you that information. That is an 'answer' not a 'referral' to a website.

The IRS is the best source of that information and the link provides the exact details.

That said, here are the criteria used:


  • 1. Whether the person performing services is engaged in an occupation or business distinct from that of the principal;
  • 2. Whether or not the work is a part of the regular business of the principal or alleged employer;
  • 3. Whether the principal or the worker supplies the instrumentalities, tools, and the place for the person doing the work;
  • 4. The alleged employee’s investment in the equipment or materials required by his or her task or his or her employment of helpers;
  • 5. Whether the service rendered requires a special skill;
  • 6. The kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the principal or by a specialist without supervision;
  • 7. The alleged employee’s opportunity for profit or loss depending on his or her managerial skill;
  • 8. The length of time for which the services are to be performed;
  • 9. The degree of permanence of the working relationship;
  • 10. The method of payment, whether by time or by the job; and
  • 11. Whether or not the parties believe they are creating an employer-employee relationship may have some bearing on the question, but is not determinative since this is a question of law based on objective tests.


Customer: replied 1 year ago.

I just spent the last 1/2 hr on the irs website you sent me to and still don't have my answer from their website or you. I was a Housekeeper for an Individuals home 4 days a week paid in cash every Friday job posting on Care.com where I located the position said 4 hrs a day $100 and as I pointed out in my original question because of the size of the property and laundry I worked usually 6-7 hrs a day ( which the owner played ostrich) and still only paid me the $100 . I am a perfectionist and put in the extra time for job security only to have that after 20 months not even considered when the owner had one of her hormonal moods and as stated in length in my original question fired me. If you can't or won't give me the answer as to what my particular circumstances rights are then will you please release the question to another expert that will.


 

Expert:  Joseph replied 1 year ago.
I already gave you many answers, but I will opt out in favor of another expert.
Customer: replied 1 year ago.

Thank you but I hope you understand my point I don't have an answer to MY question yet and I need one.

Expert:  Wendy-Mod replied 1 year ago.

Hi, I am a moderator for this topic. It seems the Professional has left this conversation. This happens occasionally, and it's usually because the professional thinks that someone else might be a better match for your question. I've been working hard to find a new Professional to assist you right away, but sometimes finding the right Professional can take a little longer than expected.


I wonder whether you're ok with continuing to wait for an answer. If you are, please let me know and I will continue my search. If not, feel free to let me know and I will cancel this question for you.

Thank you!

Wendy

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Joseph
Joseph
California Employment Lawyer
5222 Satisfied Customers
Extensive experience representing employees and management