Statute of limitations??

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Latest post 02-26-2013 7:08 PM by MrsD. 15 replies.
  • 02-26-2013 2:19 PM

    • MrsD
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    Statute of limitations??

    Does anyone know the SOL for when an employer has misclassified an employee as an Independent Contractor? Or does it vary by State? This is Michigan. 

    Thank you,
    Mrs D. :) 

    Mrs. D.

  • 02-26-2013 2:29 PM In reply to

    • FallenM
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    Re: Statute of limitations??

    I'm gathering that you *may* be trying to ask how long you have to go after the employer for something to do with, say, overtime not paid ... or the state/IRS as it relates to employer share of certain taxes? 

    Not entirely clear what you mean otherwise.  You'd discuss topic of overtime pay if that's an issue with the state labor dept. or nearest federal OL wage-hour division office.

    http://www.dol.gov/whd/america2.htm#Michigan

  • 02-26-2013 3:10 PM In reply to

    • Drew
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    Re: Statute of limitations??

     

    Depends and details matter and are a bit state specific --if you were misclassified  as an IC so as to avoid prevailing wage laws it might be 3 years, also deliverately end running OT might be 3 years  but a simple blooper might be 2 years  and simple wage claim, which I doubt this is,  might be 1 year  and even if your contract as an IC reports to waive certain issues that may be unenforceable.

    Time matters--smarter to lay it out on paper and if necessary use counsel but file it timely ASAP

    Deliberate misclassification is not a home brew project for most of us--I suggest if large $$--get a pro to lay out the options --but if time is flying-file first-sort out second.



  • 02-26-2013 3:38 PM In reply to

    • MrsD
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    Re: Statute of limitations??

    Thank you Drew. That was what I needed to know. Thank you Fallen also for your answer. Some of the others are familiar with what I was asking, because they have been here for me before, when I have asked questions on this same subject/employer. 

    I didn't put the whole story in, because I didn't want to get long winded, as I sometimes DO, lol!!!

    BTW...as the others know (from my experience with them), the DOL here, is absolutely useless!!

    The EEOC is just as useless. (And no, that isn't sour grapes..) At one time, years ago, (1980's) I had a boss who exposed himself to me right in the nightclub I worked at, at the time, and in FRONT of several band members. I reported him, and they took SOOO long to investigate, (a year) that they claimed to not be able to "find" any of the witnesses (5). When they asked him, he of course denied it, so they closed the case, and said that he said that all he "remembered" doing "that day" was adjusting his belt buckle, and I must have been seeing things...Whatever...


    Thank you both for your responses :)

     

    Mrs. D.

  • 02-26-2013 3:46 PM In reply to

    Re: Statute of limitations??

    MrsD:
    Does anyone know the SOL for when an employer has misclassified an employee as an Independent Contractor? Or does it vary by State? This is Michigan. 

    That tells me what the problem is, but not what it is you want to sue for, i.e. how you were harmed by the misclassification (assuming that indeed you were misclassified). Who do you want to sue and what damages are you are seeking to recover?

  • 02-26-2013 4:02 PM In reply to

    • MrsD
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    Re: Statute of limitations??

    I would actually like to sue them in order for them to stop the process of misclassifying workers. They decide everything that the workers do. Provide training, wardrobe, schedules, tools, tell you when to take breaks, you are promoting THEIR service, (no goods of your own to sell) They also discipline you when they feel it is necessary. On a 10 day show, you end up working 48 hours in 7 days, but get no overtime. They also, in the last couple of years, have started to insist that we take names and information of consumers, so that they can send the company, "leads". 

    You do not come and go on your own. They choose the cities you work in, and provide transportation. This is ongoing, not a one time job... They tell you what, where, and how, to do things every step of the way, yet YOU pay all of your own taxes, because they SAY that you are in IC, and have you sign a contract to that effect. I worked for them for 12 years, and there are hundreds more, who have been with them even longer... 

    Mrs. D.

  • 02-26-2013 4:07 PM In reply to

    • FallenM
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    Re: Statute of limitations??

    Not sure of purpose of follow-up (you do not ask a question), but not clear why you'd want to go to the (likely multi-tens of thousands) expense of suing when the IRS/state taxing authorities and DOL, state and/or federal, can address.  Workers can address on their own, or you're free to complain about X-Y-Z and point out that hundreds of workers are involved.

    The contract an employee sign is unenforceable as it relates to the employer's tax-related (and workers' comp-related) obligations as an employer if indeed the workers are being misclassified as contractors.  Federal and state government are easily able to go back several years for overtime nonpayment.

     

  • 02-26-2013 4:26 PM In reply to

    • MrsD
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    Re: Statute of limitations??

    Fallen...

    I followed up, because Tax Agent asked ME a question. I don't necessarily have to sue, but I wasn't sure if it was too late to go to the IRS/State...to have them look into it or not. I don't think that they should get a "slap on the wrist" (which is what Governments sometimes do) if they are doing wrong by the people who are working for them. 

    I don't plan to sue on behalf of anyone except myself, but mentioned the amount of people involved, because this is on a fairly large scale. 

    I inquired to a lawyer's office that I saw on TV, that supposedly specializes in this area of law, but they had a paralegal call me back, to tell me that there was "nothing they could do" for me. He couldn't tell me why though.He said he "didn't know". I thought that it might have been because the SOL had expired, hence, my original question. I couldn't think of any other reason if they are indeed breaking the law by these practices.  

    Maybe I am just not understanding what it means to have "control of your own work" if you are an IC. I thought the description was clear, and what they are doing seems to be the complete opposite of that, so I just don't get it....

    Mrs. D.

  • 02-26-2013 4:52 PM In reply to

    Re: Statute of limitations??

    I've read through most of the posts in this thread, and it's not at all clear what statute of limitations you're concerned with.  Simply misclassifying an employee as an independent contractor, by itself, does not necessary create any sort of civil cause of action.  Nor is it necessarily a crime.  We would need more info to understand what you're talking about.

  • 02-26-2013 5:05 PM In reply to

    • MrsD
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    Re: Statute of limitations??

    I'm sorry. I'll try to be clearer.

    I was under the impression that it was against the law for companies to misclassify employees as IC's to avoid paying taxes on the "employee". I also thought I read that there are hefty fines/consequences for doing so.

    If I thought that I had been (for the last 12 years) misclassified an an IC, when I was TREATED like an employee, what are my options, and how long would I have, if I had a case against the Agency?

    Mrs. D.

  • 02-26-2013 5:17 PM In reply to

    Re: Statute of limitations??

    Hi Mrs D,

    In 2010 you had a couple of lengthy discussions on this subject and the conclusion then was that your "agency" was classifying the "talent" as independent contractors in order to dodge payroll taxes, unemployment, and workers comp.

    You were given a variety of resources and suggestions, most of which involved turning the "agency" in to a variety of regulatory agencies.

    So, here, two and a half years later you have continued to work under the same conditions.

    I think, basically, you have nothing to sue for but you still have the option of reporting the practices to the appropriate regulatory agencies.

    What bothers me, though, is that you are still working at this. If it was so terrible an affront to you why haven't you just found another line of work since apparently nothing has changed in your industry?

    You mentioned back then that the "talent" doesn't make waves because the money is too good. Does that go for you, too?

    I don't see you saying no to the assignements.

     

    • The right of the people 
    • to keep and bear arms,
    • shall not be infringed.
  • 02-26-2013 5:30 PM In reply to

    Re: Statute of limitations??

    It may be.  If you believe this is happening, feel free to report it to the IRS.  Determining whether you might have a claim would require more information about how or if this affected you.

  • 02-26-2013 6:24 PM In reply to

    • MrsD
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    • MI
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    Re: Statute of limitations??

    Jack, I am NOT still working for them. I never said I still was. I am merely concerned that they are still doing it, and didn't know how to go back through to find the information from the posts from before. I am in another line of work. Have not worked for them since April of 2011.

    Mrs. D.

  • 02-26-2013 6:26 PM In reply to

    • MrsD
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    • Joined on 11-16-2000
    • MI
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    Re: Statute of limitations??

    Thank you CA :)

     

    Mrs. D.

  • 02-26-2013 6:59 PM In reply to

    Re: Statute of limitations??

    MrsD:
    Jack, I am NOT still working for them. I never said I still was

    Never said you weren't. But you brought up the same topic again and it appeared contemporaneous.

    MrsD:
    I am merely concerned that they are still doing it, and didn't know how to go back through to find the information from the posts from before.

    You can find all your old posts here:

    http://community.lawyers.com/members/221893/activities/default.aspx

    MrsD:
    I am in another line of work. Have not worked for them since April of 2011.

    I understand that the IRS (and maybe state income tax agencies) can go back quite a number of years if the "agency" filed fraudulent returns. I'm guessing that unemployment agencies might also be able to go back a bit. Not sure what workers comp regulatory agencies would do. But you have the option of reporting the practices to all of them.

     

    • The right of the people 
    • to keep and bear arms,
    • shall not be infringed.
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