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I have worked for an internet company in California for 3 years…

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I have worked for an...
I have worked for an internet company in California for 3 years 10 months, as an independent contractor. I am being laid off. I have paid federal and state taxes but no unemployment insurance has been taken out of my paycheck. I have no way to claim unemployment insurance, is that correct?
Submitted: 8 years ago.Category: Legal
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6/21/2010
Lawyer: LawTalk, Attorney replied 8 years ago
LawTalk
LawTalk, Attorney
Category: Legal
Satisfied Customers: 37,876
Experience: I am a practicing attorney with more than 3 decades of experience in the legal field.
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Good morning,

I'm sorry to hear of your dilemma.

As an independent contractor, you are seen by the State of California as a business owner. You don;t pay into either workers' compensation or into State Unemployment and therefore you do not qualify for such benefits, I'm afraid.

There is nothing that you can do retroactively to change this problem. I'm afraid that the person who gave you hope of finding a loophole was simply misinformed.

For future reference, as an independent contractor, should you earn more than $,600 a year, you are eligible to buy into the State Disability Insurance program. However, you are not eligible for Unemployment Insurance coverage through the state.

I wish you the best in 2010.

I understand that you may be disappointed by the Answer you received, as it was not favorable to your situation. Had I been able to provide an Answer which might have given you a successful legal outcome, it would have been my pleasure to do so. I do work diligently to provide you with the correct Answer under the law, and because I have no control over what the law is, I ask you not to hold that against me. It has been my pleasure to assist you, and would be greatly appreciated if you would click the green Accept icon so that I can receive credit for having answered your Question. Thank you in advance.

Best regards,

Doug

LawTalk
LawTalk, Attorney
Category: Legal
Satisfied Customers: 37,876
Experience: I am a practicing attorney with more than 3 decades of experience in the legal field.
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Customer reply replied 8 years ago
I have since gone on to another lawyer who really knows the field. I will accept your answer under the circumstances but you don't know the topic well enough to be offering this kind of advice. The fact is that there are situations in which people in this situation have a case against their employer. A claim can be made. The crux of the matter is in the definitions of full time employee and independent contractor. In a word, there are 'holes' in the EDD definition.
Lawyer: LawTalk, Attorney replied 8 years ago
Good morning,

Thank you for your accept. Actually, I really do know the subject area pretty well, and I am aware that there are exceptions to every rule of law. Employers do occasionally mis classify workers as independent as opposed to employees----fail to pay payroll taxes and deprive folks who should be employees of unemployment/disability and workers' compensation coverage----and I am aware that those aggrieved may take action against the employer.

However, the fact remains that your question was whether an independent contractor may claim unemployment benefits----and my answer was correct. If the unemployment insurance premium is not paid for by the employer, the worker can not make a claim to the state for benefits. Like any other insurance, if the policy premium is not paid, then no coverage exists.

On JustAnswer we are not here to act as your attorney and thoroughly investigate all aspects of your particular situation and provide you with specific legal advice relative to your exact situation----that would constitute the practice of law and we are prohibited from doing that in this forum. I am merely educating customers about the law based on their general questions.

Had you asked about whether you should have been classified as an employee as opposed to an independent contractor, I would have explained that the following is an often used test, used in determining employment status:

Independent Contractor or Employee

IRS 20 Factor Test

An employee is more likely an Employee than an Independent Contractor if the worker:

1. Is required to comply with the employer’s instructions about the work.
2. Receives training from the employer.
3. Provides services that are integrated into the business.
4. Provides services that must be rendered personally.
5. Hires, supervises and pays assistants for the employer.
6. Has a continuing relationship with the employer.
7. Follows set hours of work.
8. Works full-time for the employer.
9. Works on the employer’s premises.
10. Does the work in a sequence set by the employer.
11. Submits regular reports to the employer.
12. Receives payments of regular amounts at set intervals.
13. Receives payments for business or traveling expenses.
14. Relies on the employer to furnish tools and materials.
15. Lacks a major investment in facilities used to perform the service.
16. Cannot make a profit or suffer a loss from the services.
17. Works for one employer at a time.
18. Does not offer services to the general public.
19. Can be fired.
20. Can quit at any time without liability.

I would have further shared with you that if you believe that you were mis-classified you could ask the IRS for assistance by filing this form:

http://www.irs.gov/pub/irs-pdf/fss8.pdf

 

Again, thank you for your Accept. I hope you understand more thoroughly the nature of the assistance you can receive here on JustAnswer. We are not a substitute for a your local attorney, or your local physician. We do our best to provide you with accurate information relative to your specific question, but we do not step into the shoes of your lawyer or doctor.

Have a great weekend ahead,

Doug

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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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