Hey guys,
So after a month I quit a job after the CFO and my boss were extremely rude regarding my sexual orientation-both directly and indirectly. At the end of my fourth week I noticed that I still did not receive any of my pay checks.
It turns out, when I emailed HR, that they want me to invoice them as a contractor (even though I filled out a W2 and signed an offer letter). Any reason why they are trying to do this?
If you’re a contractor they don’t have to pay taxes on your paychecks. (At least that’s the case in MA.)
What constitutes an employee is spelled out pretty clearly in the law. The easiest test is whether you would have been paid the same salary regardless of the number of hours you worked in a week. Does your offer letter state a salary (weekly, biweekly, monthly, annual or some other period) or does it state an hourly rate? If it was a salaried position they can’t treat you like a contractor. Your state’s Attorney General’s office can probably help you straighten them out.
They’re trying to save money by not paying payroll taxes. This means that you would have to pay the taxes yourself. It’s also possible they want to keep you from filing for unemployment (which would make their rates go up) and possibly they think that if you agree you were a contractor then you would be in a worse legal position were you to bring some kind of lawsuit for harassment.
It’s unlikely that the IRS would consider you a contractor, if you were hired for a specified yearly (or weekly or whatever time period) salary, without a definite end date. Even if it was an hourly rate, if you were working for them and only them full time you’re probably an employee not a contractor. [Not Legal Advice; I only vaguely know what I’m talking about]
Thanks for responding guys-yes this was a salaried position with a stated payment frequency (every two weeks)
Yeah, sounds like they are trying to pull a fast one. Either the taxes, unemployment or lawsuit possibility all being a reason as other people have stated.
You filled out a W-2. You’re an employee not a contractor and they are stuck with it.
(I’m not a lawyer either but we can all read between the lines).
You should probably talk to your local employment standards bureau - when an employer does not pay wages in a timely fashion, you may have to start legal proceedings against them (like with a registered letter demanding your wages or something like that).
Yes you can simply go to your state’s website and look at your Department of Labor. They usually have a wages and hours division that is where you go.
Of course the company can simply let you go now. You may not have been employed long enough to collect any UI. Usually contractors aren’t subject to benefits like insurance, so you would have to see if your are in anyway able to get Cobra
thanks guys,
I called the dept of labor in ny state (the hours and wages) division and they did not really seem to have any power to do anything-they took my information and thanked me.
Even if they won’t help, you don’t have to send an invoice (and you shouldn’t). Insist that you’re not a contractor, you’re an employee, and you have the offer letter.
You may have to contact a lawyer if they really want to mess with you.
You may be able to file for unemployment benefits even if you quit, if you quit because of harassment of a protected status. This will vary based on your state.
Nitpick, it’s a W-4 not a W-2; W-4 is the withholding certificate that tells them how much Federal income tax to take out; W-2 is the document you get in January, saying how much you earned and how much was withheld.
Have you tried asking HR why they would have made you a formal offer (presumably you have a copy of the letter) when they expected you to be a contractor?
You need to speak to an employment lawyer pronto.
I’m afraid it’s sounding like that, too, if your local bureaucracy has no teeth to make employers cough up the wages they owe. Alternatively, rather than paying legal fees, just make up an invoice for the full amount with no withholdings and just pay the tax yourself - you don’t want the pyrrhic victory of winning this one and it actually costing you money.
Invoice them 10x your expected salary. Then see how fast they say, ‘No! You’re an employee, not a contractor!’ 
NEVER take my advice. 
Or send the invoice for your salary plus the value of the corresponding employer’s contributions - FICA, Medicare, Social Security, state unemployment, etc. After all, you’ll be on the hook to pay them.
My vote is for one call to HR, to hit them with the clue-by-four that they made you an offer of employment and you were not a contractor, if that was in fact the case.
If that doesn’t solve the problem, I agree with the need for an employment lawyer.
Document everything.
If you were an employee, trying to pull this now is at least 17 kinds of dumb.
This sounds right, though if the amount you’re owed is small enough for small claims, you could go that option without a lawyer (though if you’re thinking of filing for unemployment, a lawyer is probably a good idea).
IANAL but I’d bet they’re doing this to prevent you from suing them for discrimination. I wouldn’t do what they’re asking if I were you.
My wild-ass guess is that they assume that most people would just cough up an invoice rather than take it to the courts (I know I would).
You make a good point about the discrimination, ratatosk. As a contractor, would ceen lose the ability to sue for discrimination in the workplace?
I don’t know, but it’s certainly not going to be any easier as a contractor, that’s for sure. Hopefully a lawyer will read this thread and answer that. Even if the OP has no intention of filing a claim, I think it would not be wise to do anything that might prevent doing that in the future.
How much are they shorting you in gross wages?
What state are you residing/working in?