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You are here: Experts > Business > Corporate Law > Tax Law (Questions About Taxes) > 1099 and NYS unemployment
Expert: John L. Tidwell - 11/4/2009
Question
I have worked the last 2 years for an individual as a 1099 contractor (administrative assistant); she submitted for my monthly salary through her expense reports for the firm she consulted for. My question is she is now closing up shop will I be eligible for unemployment in NYS? Prior to this I was a W-2 employee, can I collect from that past employment? This is all a shock to me and possibly the worst time in our history to be unemployed. She did have me sign a contract and set up my hourly wage, but that I would be responsible for all taxes and health insurance. Am I now screwed with respect to unemployment benefits. Mind you I make less then 44K annually.
Answer
Ms. Klein:
Your employer can not make you sign away your right to be treated as an employee. You may have sign a contract but is the contract legal. For instance, you worked as an administrative assistant. Therefore you worked for her under her direction an control. She told you where to go, what you could and could not do, in other words she "bossed" you around. That mere controlling act in all 51 states makes you an employee and no fancy contract can take that right away.
Therefore, when she lets you go, proceed to the nearest unemployment claims office or career center or call center and file a claim. Even thought your employer may not have reported your wages you still have the right to file a claim and "protest" the fact that no wages are on file for you. This type of claim is called in the unemployment field as a "wage protest". All workers in theses offices will know how to handle that type of claim. It will take long for you to receive your benefits because an "auditor" will required to investigate your claim an make an independent assessment of the wages that should have been reported on you behalf. Do not let anyone talk you out of this right. The wages that your claim will be based on are 3rd %26 4th quarter of 2008 and the 1st %26 2nd of 2009.
Hopefully this will assist you and if you have any more question please ask me. Also please let me know your out come.
John
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