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Dwayne B.
Dwayne B., Lawyer
Category: Employment Law
Satisfied Customers: 33918
Experience:  Employment Law Expert
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I've been audited by l&I and they ruled that my subs aren't

Customer Question

I've been audited by l&I and they ruled that my subs aren't really subs. 2 of them worked 8 months for me and 4 months for another contractor. The l&I rep is only charging me for their time worked and letting the other contractors off how can this be?
Submitted: 2 years ago.
Category: Employment Law
Expert:  Dwayne B. replied 2 years ago.
Hello and thank you for contacting us. This is Dwayne B. and I’m an expert here and looking forward to assisting you today. If at any point any of my answers aren’t clear please don’t hesitate to ask for clarification. Also, I can only answer the questions you specifically ask and based on the facts that you give so please be sure that you ask the questions you want to ask and provide all necessary facts. I'm not sure what you're asking, could you rephrase your question?
Customer: replied 2 years ago.
L&I has ruled that my sub contractors are actually employee's. They are charging me back taxes for 2014 for subs that worked for me only 66% of the year. They are not charging the other 34% to anyone else. The subs are licensed and bonded and insured can l&I legally do this?.
Expert:  Dwayne B. replied 2 years ago.
They can charge you with the penalties and interest if the people did actually meet the definition of employees as opposed to sub-contractors. You can go through the appeal process if you choose and if that fails then you can always file a lawsuit to challenge their interpretation of the rules.As to them charging you and not charging anyone else, yes, they can do that. While the law should be enforced equally unfortunately it is not always. Their failure to charge the other 35% to someone else wouldn't affect whether you owe your 66%. It's really no different than when someone is pulled over for speeding even though other people on the roadway are speeding as well. "They did it too" is not a viable defense to whether or not you did it.HOWEVER, should you decide to appeal or file a lawsuit, the fact that they did not charge the other 34% to the other employers could, in theory, be used to show that you were not out of compliance. It is a tough position to take and has to be argued correctly but since whether someone is an independent contractor or not is a subjective determination then the fact that they didn't impose the penalty on another employer could be argued as them not making that finding in that case and therefore it shouldn't have been made in your case as well.
Expert:  Dwayne B. replied 2 years ago.
That is a different type of argument than the one you were initially referring to where you just don't want to be penalized because someone else wasn't, which isn't a legally valid argument unless you can find another reason for the unfair treatment such as you being a member of a protected class and this is discrimination, a personal grudge, you were a whistleblower, etc.