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Brent Blanchard
Brent Blanchard, Lawyer
Category: Employment Law
Satisfied Customers: 1975
Experience:  Twelve years of experience in employment law matters, representing both employees and employers.
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Plan on leaving a company soon. I've been red to work in

Customer Question

plan on leaving a company soon. I've been hired to work in house, but i was given a 1099 and was expecting a W2. I never signed a worker contract agreement, i've been feature on their site http://www.absolutewebservices.com/company/the-team/ have my own business card, and email signature. I feel really duped. And i am on their company video. I want to get a w-2 and what can i do in regards ***** ***** being featured all over their media?
Submitted: 8 months ago.
Category: Employment Law
Expert:  Brent Blanchard replied 8 months ago.

Thank you for your question. Sorry to hear that your expectations were...violated.

A couple of questions and legal facts for you to know.

1. Getting a W-2 instead of a 1099? Well, the first thing is that a person's paystubs will show whether they are having payroll taxes deducted. If a $20/hour worker is getting $800 net for a 40-hour week, then they KNOW that nothing is being deducted and self-employment taxes will be due. However, the IRS has a large list of factors it uses to determine whether a worker is REALLY an independent contractor. You can read them here: general rules-- https://www.irs.gov/Businesses/Small-Businesses-&-Self-Employed/Independent-Contractor-Defined

A bit more detail- https://www.irs.gov/Businesses/Small-Businesses-&-Self-Employed/Independent-Contractor-Self-Employed-or-Employee

Specific factors- https://www.irs.gov/pub/irs-pdf/fss8.pdf

Look at Part II of that IRS pdf document.

I can't give you legal advice here, but many people can read the rules and the definitions and the forms and come to their own conclusions.

2. Use of a person's likeness for profit:

This can be sticky. If the promotional materials are intended to bring more customers to the business and that increased business volume includes the worker getting a piece of that pie, consent for such use is often implied AND will result in no monetary damages to support any sort of a lawsuit.

Consent given can be revoked. If a signed release was NOT obtained first, any verbal consent or implied consent can still be revoked, traditionally and most reliably in writing. Unfortunately, a lot of bona fide employees never revoke consent for fear of offending the boss, being subject to retaliatory actions, or even losing the job. IF a person really is an independent contractor, the "harm" is supposed to be much less if they lose the gig, because being self-employed is supposed to mean that the person can just generate more business somewhere else with another independent contract.

You can find a very nice write-up on Florida's law governing use of a person's name or likeness here: http://www.dmlp.org/legal-guide/florida-right-publicity-law

Thank you.

Customer: replied 8 months ago.
i still don't know what to do. so i have no options here?
Expert:  Brent Blanchard replied 8 months ago.

Our Terms of Service here do not allow Experts to tell Customers what to do.

We can answer questions about the law, and provide what you might call information and education.

I believe that the above answer does tell you that the law allows anyone to revoke permission to use their likeness.

I also believe the other parts of the answer above point you to the rules the IRS uses to determine independent contractor vs. employee status. That question essentially boils down to control--companies that hire independent contractors generally have little or no control over how the worker accomplishes the task. The hiring business is supposed to be interested only in the results desired. Usually the independent contractor provides his or her own tools and sets his or her own hours as well, but the hours part can be legitimately requested to be within certain parameters by the contracting business.

The independent contractor rules are case-by-case. This is largely because each "factor" or "element" or whatever the IRS calls it can be solidly met, barely met, be in between, or be not met at all. And there is no hard-and-fast formula like if a worker's situation meets "six out of the 19 factors, they are definitely an employee" or the reverse, a cookbook approach to saying someone is/was an independent contractor.

Were all of your paychecks 100% of all money earned, without anything held out for taxes? If so, you had that clue long before coming here with your questions.

Thank you.