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1099 VS W2

Discussion in 'Unemployment Insurance & Benefits' started by piercejpierce, Mar 6, 2019.

  1. piercejpierce

    piercejpierce Law Topic Starter New Member

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    Jurisdiction:
    Ohio
    OHIO so i was an warehouse manager under a 1099, but after research and talk via lawyer free consultation we both believe i was wrongly classified as a 1099 employee and I filed for unemployment and was denied twice but now today i got a letter stating it was sent to review commission "State of Ohio Unemployment Compensation Review Commission P.O. Box 182299 Columbus, Ohio 43218-2299 NOTICE THAT AN APPEAL HAS BEEN TRANSFERRED BY THE DIRECTOR TO THE REVIEW COMMISSION". the first two were denied due to "Did the claimant file a valid application for determination of benefit rights? An individual is entitled to a valid application if the individual is unemployed when they file and has been employed in covered employment in at least 20 qualifying weeks within the base period, has had an average weekly wage of at least $261.00, and for applications filed on or after August 1, 2004, the reason for separation from the individual's most recent employment is not disqualifying under sections 4141.29 (D)(2) or 4141.291 ORC. The base period is the first four of the last five completed calendar quarters prior to filing. 4141.01 (O)(Q)(R) ORC. ". so my question is how does the process of the phone interview work/ can i ask questions to employer,what should I expect? The idea is to prove he set the hours, the company trained me,there was no contract,that i could not come and go as i please which all is critical to prove i was a w2 employee not a 1099 under ohio law.
     
  2. flyingron

    flyingron Well-Known Member

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    First things first. While you have sent (or should send if you haven't) an SS-8 into the IRS (and perhaps even file to not be responsible for the employers share of the SE tax), you need to go to the appeal hearing and state exactly what your job responsibilities were.

    If you show up on your employer's schedule, at his facility, and work according to his guidance, then it does indeed appear that you are an employee. You don't need to explain to the hearing board what the difference between a contractor and employee is, they should know that. You need to just fully describe your job.

    Keep quiet while other people are talking in the hearing. It's not your job to grill the employeer. You may have the opportunity to ask questions, but understand asking questions is not ARGUING with the other party. If you want to point out that you have a different view of reality you can make that in your own testimony.
     
  3. army judge

    army judge Super Moderator

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    Employees have a slew of items DEDUCTED from their pay checks

    Examples of these deductions are: Social Security, Medicare, State income taxes, local/municipality income taxes, federal income taxes, etc...

    Lack of such deductions makes proving you were an employee problematic.

    However, if the items were deducted, proof of their deduction makes proving employee status incredibly easy.
     
  4. flyingron

    flyingron Well-Known Member

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    What you have deducted isn't a determining factor in whether you were an illegally classified independent contractor. An employer is free to treat an independent as an employee. He's not free to just declare someone an independent contractor and skip all those things that employers are obligated to do for employees (notably pay their share of the payroll taxes).
     
  5. piercejpierce

    piercejpierce Law Topic Starter New Member

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    Thx for all the help, so to give you an idea this is a warehouse situation, I was the only employee and all training and hours were set by the employer. My job was to unload/load trailers,pick and pack orders,inventory. Then later IT and q&A was added without decousing me saying it was ok. There was never a contract, I also didn’t know it was no legal until my lawyer for my wife’s Immagration asked for my w-2 and when I told them I was paid as an 1099 they told me that there most like an issue with being paid by 1099(not for Immagration but for tax issues) and I asked and the employer said I was an employee but I didn’t record it. So I tryed to see if an independent contractor applied to me which it did not.
     
  6. flyingron

    flyingron Well-Known Member

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    No, it very much sounds like you were misclassified. Just tell the UI people what you do, including the increase in responsibilities (note that an employer doesn't need the employees permission to increase or change the duties fo the employee, so don't go in with that chip on your shoulder).
     
  7. piercejpierce

    piercejpierce Law Topic Starter New Member

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    So I won the hearing, thing is the employer never showed up for the hearing. I received notification from ups I am getting a package tomorrow from what seems to be a lawyer. Can the appeal the decision even if they were not there?(also I know now it’s time to get a lawyer if it is about the unemployment)
     

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