Q: Is there something I can do if my employer misclassified me as an independent contractor?
I have a question regarding taxes…my employer last year classified me as an independent contractor, however i was looking into CA state law and based on what I was reading, I should have been classified as an employee. The employer gave me a 1099 and now I owe around $3000 in taxes. Is there something I can do about this since they misclassified me?
A:
In the employment law context, if you are actually an employee and not an IC, you have the protections of the California Labor Codes that you can adjudicate against your employer. Specifically, as an employee, you are entitled to overtime pay ( if you work more than 8 hours per day/ more than 40 hours per week), uninterrupted 30 minutes meal break, and 2 ten-minute rest breaks per your 8-hour shift. There are other California Labor Codes that will likely come into play depending on your particular situation.
If your employer failed to provide you with a reasonable opportunity to take your meal and rest breaks, then you are entitled to recover from your employer one additional hour of pay at your regular rate of compensation for each workday that a meal or rest period was not provided. If you were not provided with a meal and rest break on the same day, then you can recover one additional hour of pay for a missed break and one additional hour of pay for a missed rest break for that same day.
At this point, it would be a good idea to consult with an employment law attorney who will further examine your situation and explain your options. Most employment law attorneys in California offer free of charge initial consultations, and thereafter may take your case on a contingency basis, meaning you do not have to pay attorney’s fees unless and until there is a positive outcome for you. They may also advance either all or partial costs of litigation.
You can look either on this site in the Find a Lawyer section or go to California Employment Layers Association (www.cela.org), an organization whose members are committed to representing employees’ rights.
Sincerely,
Maya L. Serkova
A:
Ms Serkova's response is right on. I would just add that you are not going to be able to assert your liability for taxes against your employer. You would have paid those taxes regardless. As an IC, you should have set aside money to pay your taxes. You cannot sue your employer because you did not do so.
Good luck to you.
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