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LawTalk, Attorney
Category: California Employment Law
Satisfied Customers: 34882
Experience:  I have 30 years of experience in the practice of law, including employment law and discrimination law.
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We have 2 employees who did not get paid last pay period (paid

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We have 2 employees who did not get paid last pay period (paid 5/1/13). We had just converted payroll processors and these 2 employees' SSNs got kicked out from the new payroll system as not valid and/or belonging to them (which was verified by cross check w/ the Fed SSA database).

We want to pay them immediately so as not to violate applicable CA laws re: timely payment, but we also don't want to run afoul of Fed laws re: knowingly paying an employee under an invalid SSN. (We have since suspended them from working further hours and provided them an opportunity to correct the discrepancy or provide other acceptable I-9 documents, but have to deal w/ the 2 weeks of unpaid hours at this time.)

We could pay them on the incorrect SSN's we have on file "one more time". Or pay them as independent contractors for this 2 weeks and issue them a 1099 at the end of 2013 for this pay period, along with their W-2 for the first 4 months. Or maybe there is a preferable 3rd alternative.

Admittedly the stakes as presented here are probably "low", so we could "get away" with either course of action without severe consequnces. But if what is the "best" answer from a labor law compliance issue, say if the stakes were very high...even if that answer is not the most expedient one in such a small (2 employee) scenario?

Good morning Matt,

I'm Doug, and I'm very sorry to hear of your situation. My goal is to provide you with excellent service today.

Under both CA labor law and federal employment laws, they must be paid. And because they are no doing jobs consistent with independent contractors, they must have taxes withheld and receive W-2s

As it is likely that you will either get their identifications sorted out soon, or they will just leave the job, for now, you will want to withhold taxes under the social security numbers that you have been give and have been using. Essentially, until you know differently, you will proceed as if the social security numbers you have been given are valid. Additionally, it was absolutely proper to suspend the employees pending the clarification of their I-9 documents.

You may reply back to me using the Continue the Conversation or Reply to Expert link and I will be happy to continue to assist you until I am able to address your concerns, to your satisfaction.

Please remember to rate my service to you when our communication is completed.

I wish you the best in 2013,


Customer: replied 3 years ago.

I suspected that would be the "best" answer. Although I'm in a bit of a bind.


The new payroll processor, who is actually a large (bureaucratic) "PEO" organization back east won't "hire" these 2 employees, so I can't pay them even once via the new processor. And my prior processor, Paychex, already processed their "final" payroll (which was any employee terminations run on the 5/1 payroll). Not sure they can run 2 more retroactively.


Any final suggestions? Thanks!

Good morning Matt,

You can very easily and inexpensively have a local bookkeeper run payroll on 2 employees. In fact, you don't have much choice. You must do it or you can run into quite a bit of trouble with the state.

If you must, you can even give your employees more money that they would normally be paid---just so you can get them paid---and deal with the tax withholding issue by the time the next tax payment is due to the state and feds.

You can get a good estimate of their net pay by looking at their history---and comparing the average net per hour worked, and pay them that.

You may reply back to me again, using the Reply to Expert link, if you have additional questions.

I wish you the best in your future,

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