Reply #11: Were you an "Employee" or an "Independent Contractor" [View All]

[happyslug]

Delayed compensation (i.e. "wages") for employees are NOT permitted by law in most states. You have to be paid.

If NOT paid file a claim with your state Department of Labor, Wage and Hour Division (Or whatever it is called in your state). Now the Wage and Hour Division may do nothing, but since this is a contract you have a four year statute of limitation issue (You must file within four years of the time the wages were due). Now if wage and hour does nothing you will have to file in your Court of Common Pleas (Or whatever your state calls its county courts) for the $34,000. This has to be filed within four years of the date the money was due, but I would file it within the next six months. I strongly recommend you get a lawyer to file the action. Many lawyers will take such cases on a Contingency basis, i.e. 30% of whatever your win, which is 70% more then you are getting now. Shop around, check any local unions for names of lawyers who takes such cases (The Union reps may even know something about your state's law as to this type of compensation so ask them for they are a good source of information of such subjects).

As to Bankruptcy, if this is "wages", you are behind any "Secured Creditor", but you are ahead of any "Unsecured Creditor". Under the Bankruptcy Code, you have three types of Creditors, "Secured Creditors" who have a claim against a particular piece of property. Then you have "Priority, Unsecured Creditors" which include wages owned to wage earners and then on the bottom of the list are "Unsecured Creditors". If what we are talking about are wages then you have a priority over any other unsecured creditor.

Now the above presumes what you are asking for is "Wages", but different rules kick in if you are an "Independent Contractor". When it comes to an "Independent Contractor" then deferred payment is permitted, for you agreed to perform services and be paid later then paid at the time the work was actually done. The difference between an "Employee" and an "Independent Contractor" is how much control the Employer has over you. When you start work, when you take a break, when you stop work and HOW the work is done if determined by your Employer are signs you are an employee, on the other hand if those decisions are up to you then you can be an "Independent Contractor". Often this is on a case by case basis but the issue is how much control over how you do the job is the major factor. The more it is your decision the greater you are an "Independent Contractor", the less you have the right to make these decision the greater chance you are an employee. Now, "Independent Contractors" HAVE to work with the General Contractor (i.e the employer) to a degree, a degree which varies from job to job thus no firm rule as to what is an employee and what is an "Independent Contractor". The issue is as one views the job as a whole. I suspect you are an employee, but your Employer wanted to treat you as an "Independent Contractor" so you have to pay 13.9% Self-employment tax instead of just 7$ Social Security Tax (with the Employer also paying 7% Social Security Tax). Cheaper for the employer but only permitted if you have near total self control over what you do for him. File with wage and hour to get an independent decisions on this matter,

The only way to get paid will be to file a lawsuit against the company and see what happens (again I advice getting a lawyer, many lawyers are hungry right now, Real Estates sales are down and thus their income, ask around especially with Union Reps about the name of someone they recommend).