Marina Del Rey, CA asked in Employment Law and Tax Law for California

Q: Employee withholding wrong on first paycheck. How to correct before second one.

I took a job with the understanding that I could let them know before the first paycheck whether to submit the W2 form I filled out or whether to change it to a 1099-nec. Payroll wasn’t informed and issued first check as a W2 and I wanted it as 1099. How can we fix this before second payroll?

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1 Lawyer Answer
Neil Pedersen
Neil Pedersen
  • Westminster, CA
  • Licensed in California

A: You don't get to decide if you are paid on a W-2 or 1099 basis. If you are an employee, you must be paid on a W-2 basis. Reporting income on a 1099 basis means you are being treated as an independent contractor, and that is a legal conclusion based on many factors. In California it is very difficult to characterize a worker as an IC. It is highly likely you are an employee and not an IC.

If legally you are an employee the employer cannot fix this. It must report you as a W-2 employee.

Good luck to you.

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