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Legalease
Legalease, Lawyer
Category: Employment Law
Satisfied Customers: 16288
Experience:  13 years experience in employment law, unions, contracts, workers comp law
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Lucy I sell timeshare in South Carolina the company insists

Customer Question

Hi Lucy
I sell timeshare in South Carolina the company insists on an a arrival work time provides the clients I talk to the desks and work related materials etc yet pays commission only as an independent contractor, is this legal the also charge $165.00 for a pass to grant access to the companies properties you are selling no choice even if you do no show those properties you pay for the pass. I understand major timeshare companies like Wyndham Vacations, Diamond Resorts had suit filled against them and the court ruled if I'm not mistaken they had to go back and pay the independent contractor as employees back paying an hourly rate and redesignating the contractors as employees thus offering insurance and taking out taxes. Looking for the right information Lucy and Thank You
Submitted: 11 months ago.
Category: Employment Law
Expert:  Legalease replied 11 months ago.

Hello there Gary --

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Lucy is not online at this time so your question was directed to me because I have experience with this type of employment law (independent contractor V employee status). Generally speaking, whether or not you are an independent contractor depends upon the amount of control that the company has over you and your work hours and work station. If they control the time you arrive and depart and make you work a certain work schedule as well as provide all or most of the materials that you work with, the IRS would most likely call this a situation of employer and employee. If you were an independent contractor, you would be able to set your own hours (for the most part) and you could work independently away from the worksite if you chose to do so. The question boils down to actually comparing your own situation to the common law rules and the rules that the IRS has adopted to determine whether you are an employee or a true independent contractor (the points examines are the amount of control over your work and the overall relationship with the employer) -- Here is a link to a good article from the IRS that talks about the relationship and how to determine exactly what your relationship is with the employer https://www.irs.gov/Businesses/Small-Businesses-&-Self-Employed/Independent-Contractor-Self-Employed-or-Employee

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Finally, if push comes to shove you can submit a request yourself to the IRS on form SS-8 and describe the relationship and ask the IRS to make a determination regarding whether you are an employee or a true independent contractor. Here is a link to the Form SS-8 that you can submit to either your local or regional IRS office for consideration:

https://www.irs.gov/pub/irs-pdf/fss8.pdf (there are also links to instructions for the Form SS-8 on the first link that I directed you to). If the IRS determines that you are an employee, they will pursue the employer and the employer will be forced to pay you and anyone else affected by this back to your start date. The IRS will not notify your employer of the inquiry unless they find that you probably are an independent contractor in which case they will seek information regarding your employment and then order the employer to pay you what is due to you. If the IRS immediately determines that your employer is correct in the categorization of you as an independent contractor, they will simply just notify you of that and not get in touch with the "employer".

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MARY

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