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TexLaw
TexLaw, Attorney
Category: Legal
Satisfied Customers: 4265
Experience:  Lead trial/International commercial attorney licensed 11 yrs
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I have been employed as a W2 for my company since 2005. On

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I have been employed as a W2 for my company since 2005. On 4/30/13 I found out my co. changed me to a 1099 back in Jan of 2013, the reason was, they stated that since I drew unemployment, that means to them that I am no longer able to be a W2 for them. I never received any notice, I called to find out why my pay check looked different. I signed on for insurance as always in Dec for 2013. Now they say that I was never insured for 2013 because of the unemp. Also my 401 k is in limbo.
I never received any notice on any of this, no written. No offer of cobra ins.
Do I have any recourse. I am a insurance adjuster.
Submitted: 1 year ago.
Category: Legal
Expert:  TexLaw replied 1 year ago.
I'm unclear on this, when you say you "drew unemployment", do you mean you were being paid unemployment at the same time you were working?
Customer: replied 1 year ago.


No, typically I draw unemployment when there is a lack of work. Dec usually till May

Expert:  TexLaw replied 1 year ago.
Thank you for your response.

Your employer is incorrect and is attempting to get around having to pay unemployment insurance for you and to pay the payroll taxes for you, in addition to the other benefits. Your employers failure to tell you that it was switching you to a 1099 instead of a W2 is illegal, as is your employer secretly taking you out of health insurance.

You can sue your employer for this under ERISA (a federal insurance statute) and under COBRA. You may also file an SS-8 with the IRS for a declaration that you should be an employee rather than independent contractor. Your classification is not something that your employer may simply choose. If you have to go into work, are managed, and your employer controls you, then you are not an independent contractor. An independent contractor sets their own schedule, supplies their own tools, and is not managed when they work.

I would suggest starting off by telling your employer that you talked to a lawyer and that what they did is not legal. Tell them that if they do not change you back to w-2 status and start making payroll payments and re-enlist you in the health insurance plan, you are going to have to report this to the IRS and to the Department of Labor, as well as sue them under federal law.

Please let me know if you have any further questions. Please also kindly consider rating my answer positively so that I am compensated by the website for my work on your question. Rating positively does not cause an additional charge and does not prevent us from further discussing your questions.

Best Regards,
ZDN
TexLaw, Attorney
Category: Legal
Satisfied Customers: 4265
Experience: Lead trial/International commercial attorney licensed 11 yrs
TexLaw and 8 other Legal Specialists are ready to help you
Customer: replied 1 year ago.


Thanks for your help, Is there any money in it for my in convince ??

Expert:  TexLaw replied 1 year ago.
Not for your inconvenience, but for your losses that you experienced (any penalties you may have to pay for unpaid taxes and the amount your employer should have paid for their share of payroll taxes) and the restoration of your health insurance.

If they cooperate, you should immediately contact the Department of Labor to start the complaint process: http://www.dol.gov/whd/workers/misclassification/

You should also consider contacting a local employment law attorney to inquire into whether he/she would represent you on a contingency fee to make an ERISA claim against your employer
Customer: replied 1 year ago.


Thanks for your help

Expert:  TexLaw replied 1 year ago.
You are welcome. I hope this gets resolved for you.

Please remember to rate my answer positively :-)

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TexLaw
TexLaw
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Lead trial/International commercial attorney licensed 11 yrs