AboutJohn L. Tidwell Expertise Unemployment tax law both state and federal; determination of employer employee relationship; the usual 20 commonlaw factors for making that determination; and what makes me a liable employer.
Experience Over 20 years of field audit experience with a state agency
Organizations none
Publications none
Education/Credentials Degree in Accounting from Falls Business College
Expert: John L. Tidwell Date: 7/16/2008 Subject: Employment status
Question I agreed to fill in for an employee who is out for surgery in the month of July at a winery that I used to be employed at. For the five years I was there as a Tasting Room Assoicate, I received W2 wages.
I hold a full time job where I've been for nearly eleven years and new owners stopped calling me in because I only wanted to work 2 weekend days a month. This was explained to me just recently.
Upon rehire, (never really sure at first whether I was taken off the payroll to begin with) I filled out the usual forms, background check, looked at employee manual and I thought a W2 tax form, not really sure. I also submitted a deposit slip so that I could recieve direct deposit into my savings accnt. It contains the bank routing number.
I worked one day,, actually 5.64 hours at the apparently reduced hourly rate of $8.00 before I was given a check (not a payroll check) for $45.12. The code being used on the check is 8000 "Other Expenses."My understanding based exclusively on this, is that the winery is treating me as an Independent Contractor as opposed to a regular employee.
Based on the information on the IRS website, thier is certain criteria that I need to meet to be considered a Independent Contractor.
I wear a company logo shirt and name tag and adhere to a dress code. I initial a chart which indicates I've read the weekly memo which contains information on policy and procedure. My work is not closely supervised but I do answer to the Tasting Manager and Asst. Manager. I work serving wine to guests and move around the winery and work where needed. I punch a time card, checking in and out for lunch and breaks, taking lunch only if i work atleast six hours and a ten minute break for over four.
Am I an employee or an Independent contractor? I was asked to come in for the month of July but previously we had discussed my coming in to fill in from time to time.
Do I even have to file what I make if it is less than a certain amount? What if I donated my entire check to a nonprofit org? Myy round trip mileage to and from work is appx. 54 miles but I do not use my car for work related duties. I do not take home tips. I love working at the winery but I don' t want the headaches of filing a 1099 and paying taxes and ss for this piddly amount of $ and I do not work to cause trouble for myself by filing as an Independent Contractor if I am not one.
Please help.
Thanks very much.
Answer Elizabeth:
You are an employee not an independent contractor. It is apparent that the employer is considering you to be an independent contractor when in fact you are a part-time employee.
You know that if at this moment you contest this issue you probably will not be working there any longer. You could report this company's action to your state department of labor and to the IRS. You do realize that at the end of the year you will be getting a 1099 and will be required to file this income on a Schedule C.
You will have to decide will it be now or at the end of the year when you file your complaint with the IRS.
