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Phillips Esq.
Phillips Esq., Attorney-at-Law
Category: Employment Law
Satisfied Customers: 17453
Experience:  B.A.; M.B.A.; J.D.
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I work for my Dad in his business for the last 17 years. In

Customer Question

Hi! I work for my Dad in his business for the last 17 years. In understanding new Final Act laws going into effect this December, I realize I have been mis-catagorized as an exempt employee. From my research, I don't believe my duties are not enough to qualify currently and once the law changes as exempt employee via the Administrative Duties test (which I also understand will not change when the Final Act goes into effect and need some clarification (please):
I basically serve as: Receptionist. Customer Service for a portion of business, Secretary, Clerical, Onsite Retail Sales, Agent for Owner when showing real estate space, processing or appearing in Court, and bookeeeping and customer service, computer issue resolution person. Marketing both recommendations and aiding in creating ads by supplying correct material needed by professionals and Annual photo shoot and detailed information spreadsheet in order to provide everything necessary for Advertising Company can insert The new product line into the company website. Wearing all of these different hats and having no authority to make any decisions independently, especially decisions of any significance, outside of choosing office supplies or which pictures can be posted onto the website (that can always be changed at any time). I take care of most all tasks, without being asked if I would like to or do I have a full plate already, that the other, obviously more significant employees, prefer to no longer have to do. I'm never given the choice.
When nicely confronted with this issue including giving him some of the documentation found with the facts stating exactly what is needed for me to qualify as an exempt employee, my Boss informed me that in his opinion, I do make significant decisions and I am certainly exempt. I asked for but was not offered or given any examples of what significant decisions I am authorized to make and/or actually have and do make and was told I could contact the company CPA to clarify - the same person one who assured him that I was indeed exempt.
My questions for clarification are:
Since I do not have the authority to make any decisions of any significance in any of the multiple areas of work that I'm obligated to perform, which would have a great impact on any area of the business nor am I allowed to negotiate and personally obligate the business financially on my own without the pre-approved permission directly from the owner - will you please confirm that I am a non exempt employee and entitled to overtime past 40 hours instead of being bullied and taken advantage of?
Doesn't the obligation fall on the employer to provide whatever information necessary to prove or clarify should the Employer disagreed this point, especially if the employee has provided some of their own research stating the facts as they believe are true?
If mis-categorized and genuinely non-exempt and never paid for overtime worked for 17 years of mandatory 6 day work weeks for 5+ months every year, would I be entitled to collect some if not all mis-categorized overtime pay?
Is it legal to be paid by both paycheck and 1099? Is it legal to pay an employee, who is an adult child of the owner, as a 1099?
Thank you so much in advance!
Submitted: 2 months ago.
Category: Employment Law
Expert:  Phillips Esq. replied 2 months ago.

Hello: This isCustomer Welcome to JustAnswer! I am reviewing your post, and I will post my response very shortly. Thank you for your patience.

Expert:  Phillips Esq. replied 2 months ago.

My questions for clarification are:

Since I do not have the authority to make any decisions of any significance in any of the multiple areas of work that I'm obligated to perform, which would have a great impact on any area of the business nor am I allowed to negotiate and personally obligate the business financially on my own without the pre-approved permission directly from the owner - will you please confirm that I am a non exempt employee and entitled to overtime past 40 hours instead of being bullied and taken advantage of?

Response 1: Yes, I would confirm that. Also see this PDF.

Doesn't the obligation fall on the employer to provide whatever information necessary to prove or clarify should the Employer disagreed this point, especially if the employee has provided some of their own research stating the facts as they believe are true?

Response 2: The responsibility falls on the employer to clarify

If mis-categorized and genuinely non-exempt and never paid for overtime worked for 17 years of mandatory 6 day work weeks for 5+ months every year, would I be entitled to collect some if not all mis-categorized overtime pay?

Response 3: Yes, you would be by filing a wage claim with either Minnesota Department of Labor and Industry or with U.S. Department of Labor, Wage and Hour Division.

Is it legal to be paid by both paycheck and 1099?

Response 4: No, it is not legal.

Is it legal to pay an employee, who is an adult child of the owner, as a 1099?

Response 5: No. The employee must be paid as a W-2 and not a 1099, which is for Independent Contractors.

A 5-star rating to my response is appreciated so that I can receive proper credit for responding to your post. There is no additional cost to you for giving a 5-star rating.

Thank you for your cooperation.

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