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I have a question about classification of a person as an…

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I have a question about classification of a person as an independent contractor vs emplioyee

Lawyer's Assistant: What state are you in? It matters because laws vary by location.

California

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

Person who was classified as an independent contractor filed for unemployment. Unempoyment board said she should have been classified as and employee. What happens next. I have only one employee. That is me.

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

That was not clear. I am a sole proprietor. I have only one person who worked for me as an independent contractor performing clerical funcitons.

Submitted: 4 months ago.Category: Legal
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Answered in 33 minutes by:
3/10/2018
Lawyer: Attorney Wendy, Lawyer replied 4 months ago
Attorney Wendy
Category: Legal
Satisfied Customers: 1,170
Experience: Member at Keefer & Keefer LLC
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Hello. My name is ***** ***** I have been an attorney for 20 years. The classification of workers as independent contractors versus employees is a tricky area that routinely results in government agencies disagreeing with a company's classification. In general, independent contractor status relies on several factors. These factors are either behavioral or financial. In addition, any contracts between the parties are considered but not dispositive; in other words, even if the parties agree in a written contract that one is an independent contractor, that may not be the case. When analyzing behavioral factors the question is who controlled the work - who set the hours, place work was performed, tasks to be performed, how to perform them and the like. If you decided those things or most of them, then the individual is most likely an employee and not an independent contractor. With clerical functions it is extremely difficult, if not impossible, to claim independent contractor status, as no independent professional judgment or skills are used by that individual to do the job. Thus, the unemployment office may be correct that the individual is, or was, an employee. With that being said, the next issue will relate to employment taxes, which if an employee you should have been withholding from the individual's pay checking and paying, as well as paying the employer's share. The best approach may be to speak either with an attorney to help you make it right with the taxing entities - state and federal - or yourself to go to those agencies and admit the error and offer to discuss settlement options. You do not want to wait until the unemployment office notifies them/reports you or it is discovered later when more penalties and fees could accrue. In the future, rather than an independent contractor, clerical help is probably better classified as part-time or full-time hourly employees (not salaried).

The misclassification of people as independent contractors who are legally employees is a common error and is a real focus of the IRS and other entities; so getting ahead on this issue can help avoid unnecessary headaches down the road.

If you need further assistance, please reply to this email. If I answered your question and provided excellent service, I would greatly appreciate your 5 star rating at this time.

Please note: This information is for educational purposes only and is not legal advice. No course of action is being proposed and no attorney-client relationship or privilege has been formed as a result of this conversation.

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Lawyer: Attorney Wendy, Lawyer replied 4 months ago

Happy Friday. I just wanted to check in to see if there was anything more I can do to help answer you questions.

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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.

The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

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