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Employment Law/Retroactive 1st time classification

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Question
Hi Shirley,

I am an immigrant, who received my green card about a year ago and promptly began working.
My employer did not classify me as of yet and I was getting checks.
I guess he assumed I will be filing 1099, but it was never discussed. We've spoken about it recently, and he said that if he can file W2 retroactively for me without getting penalized he'll do it. I want to file my annual taxes and think a W2 is the best choice for me, given the type of work and the conditions under which I am employed. My question then is - can he indeed retroactively classify me as an employee and issue a W2 for me without being penalized?

Thank you in advance for your time and guidance,

Gabriel

Answer
He cannot do this without being penalized. He has not paid the payroll taxes on the amounts they must be paid at the time the wages are paid. I would advice him to give you a 1099 for 2012 and start you on payroll and a W-2 in 2013 but he will have to take out the payroll taxes for January and February to make it correct.

Shirley

Employment Law

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Shirley McAllister, CPP, PHR

Expertise

I can answer questions about payroll laws and payroll tax laws and Human Resource laws and agencies. I can answer federal payroll and human resource law questions and most states; I do not have a knowledge of the local taxes for cities and counties within the state. If and when I can I will try and send you the website where you can reference the answer and where you can obtain more information as well as a contact number if needed for that particular agency. Some agencies I have worked with are IRS, Department of Labor (federal and state), Revenue Canada (and provincial governments), Inland Revenue, OSHA (0ccupational Safety and Health Administration); Social Security Administration and National Child Support as well as other agencies in Payroll and Human Resources. Some Laws I am particularly familiar with are FLSA (Fair Labor Standards Act), ADA (Americans With Disabilities Act), FMLA (Family Medical Leave Act) COBRA (Consolidated Omnibus Reconciliation Act ) , QDRO's, QMCSO's, and other support orders and garnishments, USERRA (Uniformed Services Employment and Remployment Rights Act,PPA Act (Pension Protection Act of 2006, As well as most other employment type acts. I am also well versed in the Title V Civil Rights Act and the HIPAA (Health Insurance Portability and Accountability Act).

Experience

30 years in Payroll and Human Resources

Organizations
SHRM (Society of Human Resources) APA (American Payroll Association) DOLEA (Department of Labor Employers Association) CPA (Canadian Payroll Association) NAPW (National Association of Professional Women) The Mentoring Network

Education/Credentials
PHR Certification in Human Resources CPP Certification in Payroll in U.S. Payroll Administrator and Payroll Supervisor certification in Canada

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