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I work for a small company, 13 employees. Everyone works at…

I work for a...

I work for a small company, 13 employees. Everyone works at leaset 40 hours a week for the last 18 months. Has the owner done anything illegal

Lawyer's Assistant: Because employment law varies from place to place, can you tell me what state this is in?

Texas

Lawyer's Assistant: Has anything been filed or reported?

We receive a 1099 at the end of the year

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Answered in 1 minute by:
3/5/2018
ScottyMacEsq
ScottyMacEsq, Lawyer
Category: Employment Law
Satisfied Customers: 18,167
Experience: Licensed Texas General Practice Attorney
Verified

Thank you for using JustAnswer.

I'm sorry to hear about your situation. Are you asking if it's illegal to work employees at least 40 hours a week for 18 months straight? That is, to not give vacation, etc...?

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Customer reply replied 5 months ago
should we be doing a w-4 instead

What are your job duties? That is, what do you do for your employer?

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Did you see my follow-up question to your issue?

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Customer reply replied 5 months ago
We manufacture new boats and I am the production, parts,sales manager

Thank you for that additional information. Please give me a few minutes while I type a response. I am still here with you, but it does take a bit of time to type a complete response.

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The first thing that you need to know is that Texas is an "at will" employment state. At-will employment means that without a contract, you have no contractual or other right to employment with the company. The company is entitled to fire you for any reason: a good reason, a poor reason, or no reason at all--as long as the company does not fire you for an illegal reason (race, gender, age, religion, etc...). But it extends beyond firing, to hiring, promotions, demotions, wage cuts and raises, disciplinary actions, and even scheduling. Unless you can show that this was done in violation of a contract, union agreement, or a clear violation of an unambiguous and binding clause against the employer, or that it was done because of some minority status (age, race, gender, religion, disability) that you have, then they do have this discretion.

There is no law that restricts the number of hours that an employer can have you work, generally speaking. In certain industries, such as in trucking and airline piloting, there are maximum hours. But otherwise, there is no maximum amount of hours. Furthermore, the law does not require that your employer give you any time off, vacation time, etc. as such, the fact that he is having you work at least 40 hours a week the last 18 months is in itself not illegal.

That being said, if you are working in a position that you would be a W-2 employee rather than a 1099 employee, and are improperly classified, that is something that you could make a complaint about. It's pretty difficult to make a determination whether or not you're improperly classified at this point, but there are a number of guides online that can help you try to make this determination. The IRS itself has a lot of information about this:

Facts that provide evidence of the degree of control and independence fall into three categories:

  1. Behavioral: Does the company control or have the right to control what the worker does and how the worker does his or her job?
  2. Financial: Are the business aspects of the worker’s job controlled by the payer? (these include things like how worker is paid, whether expenses are reimbursed, who provides tools/supplies, etc.)
  3. Type of Relationship: Are there written contracts or employee type benefits (i.e. pension plan, insurance, vacation pay, etc.)? Will the relationship continue and is the work performed a key aspect of the business?

Businesses must weigh all these factors when determining whether a worker is an employee or independent contractor. Some factors may indicate that the worker is an employee, while other factors indicate that the worker is an independent contractor. There is no “magic” or set number of factors that “makes” the worker an employee or an independent contractor, and no one factor stands alone in making this determination. Also, factors which are relevant in one situation may not be relevant in another.

The keys are to look at the entire relationship, consider the degree or extent of the right to direct and control, and finally, to document each of the factors used in coming up with the determination.

Here's information from the Texas workforce commission about improper classification:

Important Facts About Employee Classification

  • Employers are responsible for classifying workers correctly.
  • A worker who is called contract labor and whose wages are reported using IRS Form 1099 may not be an independent contractor.
  • Neither the business nor the individual may choose whether the worker is classified as a contractor or employee. The relationship between the parties and the presence of direction and control determine whether or not a worker is an employee or an independent contractor.
  • A written or oral agreement between the parties does not change the status of the worker.
  • Misclassifying a worker can cost the business in taxes and interest.
  • Misclassifying a worker can result in a fine of $200 per worker if the employer is operating under a government contract.
  • Misclassifying workers costs all Texas employers in the form of higher unemployment tax rates.

If you have information that a business is not classifying workers correctly, notify TWC by email to *****@******.***, or by phone for anonymous reporting. Include as much information as you can, such as the name of the business, name of the owner/officer, the physical location of the business and the type of workers that are being misreported to TWC.

If you wish to remain anonymous, instead of emailing call us at(###) ###-#### Deaf, hard-of-hearing or speech impaired customers may contact Relay Texas: 1-***-***-**** (TDD) and 711 (Voice).

Once TWC receives an email message from you the message becomes part of the official record. The identifier that is inserted by your email service provider is included as part of the message and cannot be removed from the record (Texas Penal Code Chapter 37). The accused has a special right of access under the Public Information Act to review the official record and/or obtain copies of the record.

Hope that clears things up a bit. If you have any other questions, please let me know. If not, and you have not yet, please rate my answer AND press the "submit" button, if applicable.

Please note that I don't get any credit for the time and effort that I spent on this answer unless and until you rate it positively (3 or more stars). Look for the stars on your screen (★★★★★). You may need to scroll left/right/up/down to see these stars, but note that the rating is what closes out this question, so it is necessary that you do so.

Thank you, ***** ***** luck to you!

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Did you have any other questions before you rate this answer?

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Are you there? Please note that I am still here, awaiting your response or rating... (please note that rating closes this question out, so if there's nothing else, please rate it so that I can assist other customers that are waiting for answers to their questions).

If you can't see the stars, you may need to scroll up / down / left / or right to see them. This is where you rate so that the question will close out.

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Should I continue to await your response, or may I assist the other customers that are waiting?

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My apologies, but I must assist the other customers that are waiting. If you have any other questions, please let me know. If not, and you have not yet, please rate my answer AND press the "submit" button, if applicable.

Please note that I don't get any credit for the time and effort that I spent on this answer unless and until you rate it positively (3 or more stars). Look for the stars on your screen (★★★★★). You may need to scroll left/right/up/down to see these stars, but note that the rating is what closes out this question, so it is necessary that you do so.

If you feel that I have gone above and beyond in this answer (my average answer is about 10 minutes) bonuses are greatly appreciated. Thank you, ***** ***** luck to you!

▼ RATING REQUIRED! ▼ Please don't forget to Rate my service positively. It's only after you rate that I am credited.

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I see that you have not responded in some time. Please note that this question is still open until you rate it. I believe that I have answered your question, but if you have any other questions, please let me know. If not, and you have not yet, please rate my answer AND press the "submit" button, if applicable.

Please note that I don't get any credit for the time and effort that I spent on this answer unless and until you rate it positively (3 or more stars). Look for the stars on your screen (★★★★★). You may need to scroll left/right/up/down to see these stars, but note that the rating is what closes out this question, so it is necessary that you do so.

If you feel that I have gone above and beyond in this answer (my average answer is about 10 minutes) bonuses are greatly appreciated. Thank you, ***** ***** luck to you!

▼ RATING REQUIRED! ▼ Please don't forget to Rate my service positively. It's only after you rate that I am credited.

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Customer reply replied 5 months ago
This site and the personnel are very professional and I highly recommend it.

I'm glad to hear that.

Can you see on your screen where you need to rate it? Note that you may need to press a "submit" button after clicking on the appropriate star rating. This is what I'm waiting on from you. Thanks!

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Please note that I am still waiting for your response or rating, which you need to click on your screen. Again, look for the stars on your screen that you need to select.

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The only rating that I get credit for is when you select the stars on your screen and click submit, if applicable. Please do so so that I will get credit for the time and effort

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Hello???

Ask Your Own Employment Law Question

Again, please note that you have to click the rating on your screen for the rating to go through. Can you see it? I don't get any credit for the question unless and until you do, and the question remains open until you rate it. Please click the rating.

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Did you have any other questions before you rate this answer?

ScottyMacEsq
ScottyMacEsq, Lawyer
Category: Employment Law
Satisfied Customers: 18,167
Experience: Licensed Texas General Practice Attorney
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DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

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