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Brandon, Esq.
Brandon, Esq., Lawyer
Category: California Employment Law
Satisfied Customers: 1759
Experience:  Has received a certificate of recognition from the California State Senate for his outstanding legal service.
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my final check was 24 days late, but the company sent me a

Customer Question

my final check was 24 days late, but the company sent me a 1099 instead of a w2 can I still file for penalties on a late paycheck
Submitted: 1 year ago.
Category: California Employment Law
Expert:  Brandon, Esq. replied 1 year ago.

Employment-LawExpert :

Hello and thank you for your question today

Employment-LawExpert :

Are you online with me?

Employment-LawExpert :

Welcome to the chat

Employment-LawExpert :

Just because a company sends you a 1099 does not mean that you are not an employee. If you are in fact an employee, then you would be owed the waiting time penalty. If you are in fact an independent contractor then you would not be owed the waiting time penalty.

Employment-LawExpert :

To determine if you are an independent contractor, go to the following two sites set up by the state of California to determine if your job duties are that of an employee or an independent contractor

Employment-LawExpert :

If you are in fact a 1099 independent contractor, the waiting time penalty would not apply. This can be directly found here:

Employment-LawExpert :

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

Employment-LawExpert :

It states : "The penalty does not apply to independent contractors or volunteers, as they are not employees."

Employment-LawExpert :

After you have taken the test from the websites I first sent you, if you feel that you are in fact an employee (because they have actual control over your job) then you would file a wage claim here

Employment-LawExpert :

They will make sure you get paid, and get your waiting time penalty (and ultimately cause the company a number of very expensive fines for miscategorizing you)

Employment-LawExpert :

The basic test to determine if you are independent contractor looks at:

Employment-LawExpert :
  • 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.
Employment-LawExpert :

However, as there are no set rules and every case is looked at in a case by case basis, the best thing you can do is look at the sites directly to make your determination, or ask me questions about your job, and I can best assist you.

Employment-LawExpert :

Please do not hesitate to let me know if you have any questions or concerns regarding the above and I will be more than happy to assist you further. If you do not require any further assistance, I would be most grateful if you would remember to provide my service a positive rating, as this is the only way I will receive credit for assisting you.

Employment-LawExpert :

Have a wonderful rest of your day

Expert:  Brandon, Esq. replied 1 year ago.
Our chat has ended, but you can still continue to ask me questions here until you are satisfied with your answer. Come back to this page to view our conversation and any other new information.

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Expert:  Brandon, Esq. replied 1 year ago.

I wanted to write to check up to see if you had any additional questions or concerns concerning your question. If you do have additional questions or need additional clarification please do not hesitate to ask. Please remember that I do not know what you may already know or with that you need help with unless you tell me. If you have not provided a positive rating because you would like a different expert to answer your question, please ask and I will opt out of the question so that another expert may answer. If, however, you found the information helpful to you, please do not forget to provide me with a positive rating by clicking on one of the happy faces, or I will not receive any credit for my time in trying to assist you. Please keep in mind that even after a rating has been issued you can continue to ask questions related to the original post and I will be happy to answer them. If for some reason the rating feature is not working or you cannot find it, please write me back and let me know. Please remember that when you are asked to give a rating, you are rating My Service and not this website itself or the law as it applies to your case. I wish you all the best in 2013.

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