My employer is closing her storefront in Los Angeles and has given me and others their notice. Our jobs end this Friday, June 7th. The business will continue to operate without the store and she has asked me to continue on beyond the store closure and be paid 1099 instead of a weekly paycheck. A couple of questions:
1. Is it legal for her to switch how she pays me like this?
2. Can she challenge my right to collect unemployment if I choose not to continue working as an independent contractor for her?
2 Answers from Attorneys
Without know more facts as to what you would be doing I can not say that you would or would not be an independent contractor. There are a variety of factors to take into consideration before one can make this determination.
The answer to #2 depends in part on the answer to #1. If she is illegally trying to convert you to independent contractor status, then it would not be valid grounds to contest an unemployment claim. If the conversion is valid, then I'm not sure what the rule is.
As for #1, that is a very complex question. It depends on the nature of your work for her after the store closes. There are no bright-line rules as to when someone doing work for you is an independent contractor, or an employee. Sure, you work at McDonalds, clock in, clock out, paid by the hour and under the complete control of managers the whole time - you are clearly an employee. Conversely, if you hold a professional license, such as a building contractor, and they hire you to build a house for a fixed price, you control your work, do it when you want, how you want, within the plans and any completion deadline agreed to, they pay you, you give them the keys and walk away - of course you are an independent contractor. If your work is close to one end or the other, it is pretty easy, but in the middle there is a gray zone. The Dept. of Industrial Relations, Division of Labor Standards Enforcement has a good information page on this issue here: http://www.dir.ca.gov/dlse/faq_independentcontractor.htm
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