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Christopher B, Esq.
Christopher B, Esq., Lawyer
Category: Employment Law
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Experience:  associate attorney
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I owe 3 trucks, we go 48 states. One of my driver is going

Customer Question

I owe 3 trucks, we go 48 states. One of my driver is going when he fills like he wanna go(usually every other week and he going for one week out) he also telling me where he wanna go, how many reloads..... etc. should I keep him on W2 or 1099 is ok. We located in CA but drive all over 48 states
Submitted: 9 months ago.
Category: Employment Law
Expert:  Christopher B, Esq. replied 9 months ago.

My name is ***** ***** I will be helping you today. Thank you for your question and for using justanswer.com.

What you are asking is employee vs. independent contractor. Considerations when identifying someone as an independent contractor may include:

(1) If the worker supplies his or her own equipment, materials and tools. (does he provide his own truck?)

(2) If all necessary materials are not supplied by the employer. (Does he pay for his own gas?)

(3) If the worker can be discharged at anytime and can choose whether or not to come to work without fear of losing employment. (This seems to fit here.)

(4) If the worker control the hours of employment thus indicating they are acting as an independent contractor. (This also seems to fit).

(5) Whether the work is temporary or permanent.

Again, the nature of the work will help define the relationship. When work is considered integral to the business, it is more likely that the person is an employee. On the other hand, work that is temporary and non integral may imply independent contractor status. It might be a close one here and depending on some of the answers to these questions you will need to make this decision. There is no bright line and just because he sets his own hours doe snot make him an independent contractor (1099). Since he is now classified as an employee, you might be careful here.

Please let me know if you have any further questions and please positively rate my answer if satisfied. There should be smiley faces or numbers from 1-5 to choose from. This extra step will cost you nothing extra and will be greatly appreciated. See link for how to rate: http://ww2.justanswer.com/help/how-do-i-rate-answer-hl

Customer: replied 9 months ago.
1) If the worker supplies his or her own equipment, materials and tools. (does he provide his own truck?)no, drive my truck(2) If all necessary materials are not supplied by the employer. (Does he pay for his own gas?)company pay for gas.(3) If the worker can be discharged at anytime and can choose whether or not to come to work without fear of losing employment. (This seems to fit here.)yes, he drive every other week, sometimes he taking 2-3 weeks off too(4) If the worker control the hours of employment thus indicating they are acting as an independent contractor. (This also seems to fit). Yes, he control hours and as a driver, he choose location.(5) Whether the work is temporary or permanent.
The work is kinda permanent, but he choose when and where and for how long he wanna drive. He get paid for each trip, so each trip is each jobHere I answer all your questions. You think I can put him on 1099 or he have to be W2?The main of all, he wanna get 1099,
I Just wanna be safe on my side
Customer: replied 9 months ago.
with those answers above, I can pay him 1099?
He can get his EIN if needed
Expert:  Christopher B, Esq. replied 9 months ago.

Yes, you can file under a 1099. I would hesitate to change his pay or benefits. An employment lawsuit based on decreased pay and benefits that would properly be paid if he was an employee is the only negative I see and if nothing changes except for the W2 and 1099, there would be no basis for it. Again, this is a pretty close for him to be classified as an employee or an independent contractor, so you would not be wrong to classify as either.

Please let me know if you have any further questions and please positively rate my answer if satisfied. There should be smiley faces or numbers from 1-5 to choose from. This extra step will cost you nothing extra and will be greatly appreciated. See link for how to rate: http://http://ww2.justanswer.com/help/how-do-i-rate-answer-hl

Expert:  Christopher B, Esq. replied 9 months ago.

Was that the answer you were looking for? Please give me some feedback if not as I want to satisfy my customers. If you are satisfied, please rate my answer as this is the only way I will be compensated for my time by the site. See "rate an answer" on the following link for how to do so: http://ww2.justanswer.com/help/how-do-i-rate-answer-hl

Thank you in advance.

Customer: replied 9 months ago.
Is there a form or document that stating all this?
Like maybe website where it staying on how to determine if he 1099 or w2?
Expert:  Christopher B, Esq. replied 9 months ago.

See link for CA state website on the issue: http://www.dir.ca.gov/dlse/FAQ_IndependentContractor.htm

Please let me know if you have any further questions and please positively rate my answer if satisfied. There should be smiley faces or numbers from 1-5 to choose from. This extra step will cost you nothing extra and will be greatly appreciated. See link for how to rate: http://http://http://ww2.justanswer.com/help/how-do-i-rate-answer-hl

Expert:  Christopher B, Esq. replied 9 months ago.

Just checking back in, do you have any further questions?

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