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Patrick, Esq.
Patrick, Esq., Lawyer
Category: Employment Law
Satisfied Customers: 11248
Experience:  Significant experience in all areas of employment law.
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I'm working CA law firm that has offices in other states.

Customer Question

I'm working for a CA law firm that has offices in other states. They opened an office in Las Vegas, NV specializing in immigration, DUI/Traffic, Auto Accident, Criminal Defense. During an interview on Skype on 05/5 with the owner (attorney), his associate (attorney), and HR. I was told I'd be a full-time employee with 3 months probation. I told them I had an out of country trip for a month (June-July) planned a year ago. They were fine with it and said they would have someone replaced me temporarily for that month. I requested an offer letter which they provided via email. It was for a w-2 position, $12/hr as a legal assistant helping with case intake and marketing. I emailed them a copy of my SS card, and DL as an acceptance of the job offer. I officially started on 05/19 (I did some research work for them prior to starting on 05/19), I got the key to their office. I had been the only person in the office and helped them with marketing, researching, setting things up in the office, etc.) thinking I was their employee. I hadn't gotten employee benefits enrollment form, I-9 to sign (been 2 week since I started), company handbook. I didn't hear much from the HR, but I was corresponding with owner, his staff members like a regular employee about the office, sign orders, advertisement, etc. I sent in my 1st time sheet last week and didn't get a response from the HR. From speaking to a paralegal in their office a few days ago, I'd be doing case intake, marketing, consultation, corresponding with insurance, drafting documents, collect retainer and manage the office. Just today they wanted me to take over their Facebook page and manage it. Today, I called the HR as I don't know what the scheduled pay was and what was going on. She said she received my time sheet last week. She didn't do the I-9 form because I am on 1099 due to the fact that I would be absent for the whole month. I was surprised! 1099 was not even in the discussion at all prior to hiring me.
My questions are, is this practice even legal? Can they just offer a W-2 position, then switch to 1099 without prior discussion with me? They made me believe the whole time I was a full time employee. Can they refuse to pay me if I resign now? How long do they have to pay me as a contractor if I am not coming back next week? Their practice is really shady. They wanted me to handle everything here. They do not plan on having an in-office attorney. Prior to starting, they said they would come by LV office, but they do not plan on it since they have me handle their office effectively. Could I keep their office key until I get paid?
Submitted: 1 year ago.
Category: Employment Law
Customer: replied 1 year ago.
The paralegal D. handles Personal Injuries for their firm in CA. The owner and his associates are not licensed to practice law in NV. They have an off counsel in NV that has his own law firm though. D. was training me on how to handle PI cases.
Expert:  Patrick, Esq. replied 1 year ago.
Hello and welcome. I am very sorry to hear about this understandably frustrating experience.
There is nothing inherently illegal about giving the impression a job is going to be classified as a W2 "employee" position and then instead making it a 1099 contractor position. Even if this were a violation of some law, the damage arising from this misrepresentation would be so minimal (essentially, it's the different of withholding taxes) that it would not be worth pursuing a lawsuit over.
That said, not just anyone can be a 1099 contractor--it's not up to the employer to decide based on convenience or the employee's schedule. A workers can only properly be classified as a contractor if they retain significant control over how and when they perform their work. See here for more information: http://www.irs.gov/uac/Employee-vs.-Independent-Contractor-%E2%80%93-Seven-Tips-for-Business-Owners Based on the nature of the job you describe, it is likely that the position MUST be classified as W2 employee.
This issue aside, they must pay you your earned wages regardless of whether you continue to work there. If you can argue that you are an employee, then your employer must pay you your earned wages the earlier of the next scheduled payday or 7 days from the last day you work. If you are a contractor, though, there is no deadline other than that which would be imposed by your employment contract, and your sole remedy would be to file a lawsuit to collect what you are owed.
Unfortunately, you cannot legally keep company property to leverage getting paid. In theory, they could sue you for the replacement value of the key. Who knows what other allegations of trespass of theft they might also conjure up. It's not a road worth going down.
Ultimately, if you are not paid, the best course of action would be to file a wage claim with the NV Labor Commissioner. the Labor Commissioner will determine whether you are an employee and issue an order requiring your employer to pay you what you're owed. Filing a wage claim is a free administrative process that does not require an attorney. See here for more information: http://nevadalawhelp.org/es/resource/wage-claims?ref=8oFcz
I hope that you find this information helpful. 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 moving forward.