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Patrick, Esq.
Patrick, Esq., Lawyer
Category: Employment Law
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Experience:  Significant experience in all areas of employment law.
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My previous employer still owes me money for services. I was

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My previous employer still owes me money for services. I was hired as an independent contractor (but there wasn't a contract). It has been over months since I was paid in full and over 2 months since I quit. Since quitting I have not been able to find another job and now I have medical bills that I can't pay. Because of this I have fallen into a depression and I don't have motivation to do anything anymore. I am filing a small claims form for the services rendered but can I also file for damages and if so how much would be acceptable?
Submitted: 1 year ago.
Category: Employment Law
Expert:  Patrick, Esq. replied 1 year ago.
Hello and thank you for entrusting me to assist you. I am so sorry to hear about your difficulty getting paid and your ensuing medical issues.

Before I address your particular quesiton, I'd like to explore something else with you, which is whether your classification as an independent contractor was legal and appropriate under the circumstances. Very often, employers wrongfully classify workers as "contractors" when in fact they are employees, and that opens the employer up to a variety of legal claims.

Can you please tell me the nature of your work with this former employer? What did you do and how closely were you supervised? Did you set your own hours or did you come into work on a fixed schedule?

I very much look forward to helping you on this matter.
Customer: replied 1 year ago.

According to the IRS I was a contractor (under 1099-MISC) however, I was an administrative assistant. There were only 4-5 people working in the office so there minimal supervision. I was told that I had flexible hours but I was expected to be in everyday by 8:30 am and to leave around 4-4:30 pm.

Expert:  Patrick, Esq. replied 1 year ago.
Jackie,

Thank you very much for your reply. If you are concluding that you were a contractor merely based on the fact you received a 1099, that is inconsequential. Your employer determines whether you will be paid on a 1099 when they decide how to classify your employment--the IRS has nothing to do with it.

Unless the IRS made a formal determination following an audit or challenge of your employment status finding that you were a contractor, your classification is still up for dispute.

The determination of whether a worker is properly classified as an independent contractor or an employee is one which requires investigation into the dynamics of the actual employment relationship, with the greater the degree of control, the more likely the worker will be found to be an employee.

Factors typically examined in evaluating the status of a worker include the following:

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.

Even where there is an absence of control over work details, courts may find an employer-employee relationship if (1) the principal retains pervasive control over the operation as a whole, (2) the worker’s duties are an integral part of the operation, and (3) the nature of the work makes detailed control unnecessary.

See here for more information: http://www.twc.state.tx.us/news/efte/ics_contract_labor.html

If you were coming into the office every day working as an administrative assistant with an expectation you would maintain certain particular hours, you were very likely an employee, and as an employee, many rights attach which do not attach to contractors.

This now ties in to your original question, which is what your recourse is for the non-payment of your wages. As a contractor, your sole recourse would be to sue for breach of contract, which would entitle you to the unpaid wages plus reasonably foreseeable damages. The problem is that it would be difficult to succesffully argue that "reasonably foreseeable" damages include the sorts of problems you encountered as a result of non-payment (delinquent medical bills, depression, etc.). To prevail on such a claim, you would need to demonstrate that your employer was aware you were prone to depression, and/or was aware you had deliquent medical expenses and were relying on receipt of wages to pay them. Somehow, you will need to make the argument that these damages were foreseeable, and I think it is difficult (though not necessarily impossible) to make that leap.

Fortunately, if you were misclassified as a contractor and were in fact an employee, you have other remedies at your disposal. Texas Labor Code 61.014 requires employers to pay employees who quit their final wages by no later than the next scheduled payday. Failure to pay such wages may give rise to civil penalties and interest on the amount owed.

Additionally, employees are entitled to be paid overtime for all hours worked in excess of 40 per week. For any such hours in excess of that threshold that you worked, you would be entitled to overtime and could make a claim seeking those additional wages.

If you took breaks of less than 20 minutes while you worked at your previous employer and you were misclassified as a contractor, you would be entitled to compensation for that time as an employee pursuant to 29 C.F.R. 785.18 and state law.

All of these claims can be raised in a complaint with the Texas Workforce Commission, information for which you can find here: http://www.twc.state.tx.us/news/efte/wage_claims_in_texas.html

Rather than suing in small claims court for what you are owed and splitting these claims (since the small claims court is not equipped to conduct the sort of analysis necessary to determien whether you were an employee), it may be wise to bring all claims with the Workforce Commission instead.

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, please be so kind as to provide a positive rating of my service so that I may receive credit for assisting you. Very best wishes to you and thank you so much for coming to Just Answer.

Patrick, Esq., Lawyer
Category: Employment Law
Satisfied Customers: 7017
Experience: Significant experience in all areas of employment law.
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