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socrateaser
socrateaser, Lawyer
Category: California Employment Law
Satisfied Customers: 33549
Experience:  Retired (mostly)
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contracted sales person for an online ad sales company.

Resolved Question:

I am a contracted sales person for an online ad sales company. The contract has a fully executed clause that requires 30 d  notice of cancellation on both parties. The company notified me of cancellation of the agreement on the grounds of non performance and is trying to get out of the cancellation period. There was no non performance clause written into the contract. They have short changed me on my last (2nd last payment) and have not confirmed when or if i will be receiving my last payment. Do i have grounds to sue them? Also could i get an attorney to send them a letter demanding payment according to the contract? Could i find an attorney here that could write this letter?

Submitted: 9 months ago.
Category: California Employment Law
Expert:  socrateaser replied 9 months ago.
Hello,

Are you paid on a 1099-Misc or W-2 wages?
Customer: replied 9 months ago.

On a 1099

Expert:  socrateaser replied 9 months ago.
Okay, thanks.

You asked: Do I have grounds to sue them?

A: You have grounds to sue the contracting party. Typically, in order to prove that you are not an "at will" employee, who has been intentionally misclassified so as to avoid remitting payroll taxes, a written contract must at a minimum show that the worker cannot be terminated immediately. Otherwise, the U.S. Department of Labor would find that you were an employee, which means that the contracting party could be in some seriously hot water.

You can't threaten to report the contracting party to the government unless you are paid -- that would be criminal extortion. However, you can certainly mention that unless you are paid according to the contract, you believe that your immediate termination demonstrates that you are a misclassified employee, and that this could have some very serious repercussions. If the contracting party has any knowledge of employment law, it will know that you know how to create a very big problem by reporting the matter to the U.S. Department of Labor.

Also could i get an attorney to send them a letter demanding payment according to the contract?

A: Any competent labor attorney could write a letter demanding payment.

Could i find an attorney here that could write this letter?


A: Website policy and state law prohibits anyone here from providing you with direct representation. If you need a link to a reputable lawyer referral service, please let me know and I will be happy to provide.

And, if you need further clarification or assistance, please let me know that, too.

Thanks for using justanwer.com!

Customer: replied 9 months ago.

Thank you very much for bringing more clarity to why they created a 30 day clause within my 1099 and this strategy for understanding that they could have potentially misclassified me as an employee. Could you please clarify how you would better word approaching them with this misrepresentation?


 


This type of language would be sufficient:


 


"unless I am paid according to the contract, I believe that my immediate termination demonstrates that I am a misclassified employee, and that this could have some very serious repercussions".


 


If you could also supply an attorney referral service or the most economical way to have an attorney write an email or letter demanding payment according to the contract. As I understand, I would have to hire an attorney on retainer for this case, to simply write this type of letter and nothing else?


 


Many thanks for your generous advice.


 


Best Regards.


 


 

Expert:  socrateaser replied 9 months ago.
"unless I am paid according to the contract, I believe that my immediate termination demonstrates that I am a misclassified employee, and that this could have some very serious repercussions".

A: Actually, I think the above language is quite illustrative -- without making a direct threat. This sort of things boils down to whether or not the business has prior experience with misclassified employee claims. If it does, it will probably pay you immediately, because the risk is not worth the benefit. If the business hasn't been scewered by this particular claim in the past, it will ignore you -- which will be a big mistake, but there's not much you can do about the business' lack of labor law experience.

If you could also supply an attorney referral service or the most economical way to have an attorney write an email or letter demanding payment according to the contract. As I understand, I would have to hire an attorney on retainer for this case, to simply write this type of letter and nothing else?

 

A: Most attorneys will write a demand letter for a small fee. But, they won't "take your case" to the next step of filing a lawsuit, without a substantial retainer.

 

For a competent legal referral, see this link.

 

Hope this helps.

Customer: replied 9 months ago.

Sorry, wanted to clarify one last point. If they continue to pay me, but less than the contracted amount, would I have grounds to write something like this:


 


"My last payment was significantly less than the contracted amount during the termination of contract period. Unless I am paid according to the contract, I believe that my immediate termination and lack of payment in full demonstrates that I am a misclassified employee, and that this could have some very serious repercussions. I understand that there may have been an error in your accounting and that a payment would be pending within a defined and confirmed period of time. A payment in full would confirm that there was no misunderstanding in my misclassification of employment"? Or could that be misinterpreted as a direct threat?

Expert:  socrateaser replied 9 months ago.
Termination at will means just what it says: complete termination of the contract without notice. What you propose here is not an at-will termination, but rather a breach of contract.

This doesn't eliminate the possibility that you are a misclassified employee. Take a look at EDD Form DE 38. If you work through the form (objectively) and you decide that you're a misclassified employee, then you probably are, no matter what else the contracting party does or says.

Hope this helps.
socrateaser, Lawyer
Satisfied Customers: 33549
Experience: Retired (mostly)
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