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I hired a part time person, she start Oct 30 2017 as 1099…

I hired a part...

I hired a part time person, she start Oct 30 2017 as 1099 first, then 2 weeks later in Nov 13 2017 I started to pay her [email protected]$12/Hr. We did not sign any offer letter or 1099 contract yet, just I-9 Employment Eligibility verification and W9 form. Her performance was bad during the past 5 months, I like to switch her to 1099 contractor and cut her some hours, she refused and don't want to sign any kind of document today. Can I terminated her without increase my participation of unemployment payment if she wants to claim unemployment from Texas workforce? Do I have any risk for either she might sue me or I have to pay lot of unemployment payment for her. Thanks Linda

Lawyer's Assistant: Have you discussed this wage-and-hour issue with your HR staff? Or with a lawyer?

Not yet we are so small only 3 people's office

Lawyer's Assistant: Is your employee "at will?" Does the employee belong to a union?

No union

Lawyer's Assistant: Anything else you want the lawyer to know before I connect you?

My friend referral me to this website

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Answered in 5 minutes by:
4/25/2018
Patrick, Esq.
Category: Employment Law
Satisfied Customers: 14,558
Experience: Significant experience in all areas of employment law.
Verified

Hello and welcome to Just Answer. My name is ***** ***** it will be my pleasure to answer your question.

Unfortunately, if you terminate her she will liekly be eligible for unemployment benefits. However, most employers overestimate the financial impact that an unemployment insurance claim has on their business. In most cases, there is only a small impact on their unemployment insurance premiums and in some cases no impact at all.

As for a lawsuit, theoretically if she was misclassified as a 1099 contractor for her first two weeks of employment there could be a claim, but damages would be so incredibly small as to make a lawsuit not worth while. So, it probably is not something to worry about.

I hope that you find this information helpful. Please do not hesitate to let me know if you have any questions or concerns regarding the above and I will be more than happy to assist you further.

If you do not require any further assistance, please be so kind as to provide a positive rating of my service so that I may receive credit for assisting you. Very best wishes moving forward.

* Disclaimer *

Just Answer is a venue for informational and educational purposes only. No attorney-client relationship is formed by these communications, and the information provided is not legal advice.

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Customer reply replied 3 months ago
Dear *****
Thanks for your prompt response. My concern is do I need to pay her 50% unemployment benefit or not if she decide to claim unemployment. Or just my company's unemployment rate will increase?

Thank you for your reply. This is what I was getting at above--the effect should be minimal and only apply to your rate moving forward, as employers do not pay unemployment benefits to the claiming employee directly out of their pocket. Here is a thorough explanation as to exactly how UI claims affect the employer financially. It's far more detail than you need, but the bot***** *****ne is that there are multiple factors and the effect is usually minimal.

Again, please feel free to let me know if you have any further concerns. If I have answered your question, I would be very grateful for a positive rating of my service (using the stars at the top of the page) so that I may receive credit for assisting you.

Very best wishes.

Patrick, Esq.
Category: Employment Law
Satisfied Customers: 14,558
Experience: Significant experience in all areas of employment law.
Verified
Patrick, Esq. and 87 other Employment Law Specialists are ready to help you
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Customer reply replied 3 months ago
Hi Patrick
Thanks for your reply. The only concern for me (even she did not work for me for over 6 months-you said she still can get unemployment benefit?), she might claim that I offered her 1099 but since she didn't want to sign and I terminate her, she might sue me for this. She might also claim that she is not eligible for 1099. My strategy now is keep her as the same as W2 and reduce her working hours since I don't have enough work now. I am a CPA and we are so slow after tax season.
Thanks
Linda

Thank you for your response.

It is not illegal to convert an employee to a 1099 contractor, provided the job duties change to accommodate that change in classification. So, an employee who refuses reclassification and is then fired for it would have a very hard time with a lawsuit, since the employer could simply claim they were planning on changing the job to be consistent with that status. Put another way, there is no "protected right" to protest a lawful reclassification to 1099 status.

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Customer reply replied 3 months ago
Thanks a lot Patrick, really appreciate your help.
Are you in TX? If yes How much do you charge for create one1099 contract (short version), I did have a 15 pages contract drafted by one attorney in Oct 2016.

Unfortunately I am not in Texas. You would need to retain a local attorney for that. I wish I could provide a referral but that is prohibited by site rules.

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Customer reply replied 3 months ago
Thanks again!

My pleasure

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