If the guy is dumb enough to 1099 that's his problem not Plantmans.

You have created a Pavlov's dog if you allow him to miss meetings or be late you can be assured that he will be late again. He views you as a push over because you have allowed the behaviour for so long. You have to either fire him or clearly tell him what will happen if he does not do what is required. He is not going to straighten out so if I were you I would have the talk and squeeze a few days out of him until you find a replacement.

the irs has a list of about a dozen things that makes an actual contractor sub contractor relationship. one of the things is who says when the work is to be done. if he has a starting time set by you he may well be considered an employee of you. if the irs considers him thusly you may be on the line for withholding taxes etc. plus fines etc.

i suggest you talk to an accountant immediately. you don't want to get crosswise with the irs.

i know a fellow who lost his farm over an incorrect, bogus subcontractor relationship.

when i was first in the business i used contract workers too. but i soon decided that it was too risky and stopped doing it.

the irs has godlike powers.

and unlike the real God, they never said anything about forgiving you.

and tax obligations are not dischargable by bankruptcy. ditto with child support.

tread carefully.

good luck.

tom w

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..I also have a 427 Cobra replica with an aluminum chassis.

I do have documentation of his tardiness in the form of emails that I have sent him.

My position is this:

Slacker repeatedly does not come in at the arranged time for work nor does he perform his tasks in an efficient and timely manner.

He has been a sub contractor for years, I doubt the IRS will have any problems with my reporting at this point but I'll check.

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I use an "escalation policy" with my employees. If they're screwing up, I warn them up front and honest. If they continue, they get booted. Generally, the employee gets himself fired.

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1989 500SEL Euro
1966 250SE Cabriolet
1958 BMW Isetta 600

Ah hell, I know that kid. He's the one that pushed in bike in front of that old fart's car last week. No wonder he didn't show up for work

Having jobs with flexible hours are great, if you find the right people.

The problem comes in when they take advantage of the situation. Or their wives/friends know they have some extra time and ask them for favors.

Priorities must be in order. My other 2 guys are excellent. They call me when they miss a few hours during the day to see a Dr, or to take a car in for repairs etc.....

The thing that this clown doesn't get is that he is an independent with no health ins from me or tax benefits and he will never get that from me based on his current position.

If he doesn't get his ass in gear, he'll be 60 years old with nothing to show for it.

The sad part is that his wife actually thinks he works hard.

.02

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Enough about me, how are you doing?

Hmmm...maybe you should hire him and immediately promote him!

No wait! That's what my boss would do!

Sorry...wrong thread!

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2016 Mustang (32K) - Daughter's car

Seems like you are surrendering your power to him and his life. I mean you are not able to go into your day with a proper execution because of his disruptions. This impedes your growth and integrity as a boss and a business.
If you need him, bite your tongue but put out feelers for his replacement and guess what...make him train the new guy that will take his job.

For the record it is my understanding if his only revenue stream as a contractor is from you then he really isn't independant and in some cases it can be viewed as you are avoiding payroll taxes. I know someone who got into a problem like that. It's obvious that what he feels is important is imperative to him but what feeds his family and YOUR'S isn't. Drop the stress and get two college kids, at least they may show up on time.

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Showing up every day isn't enough. There are a lot of guys who show up every day who shouldn't have showed up at all. - James Caan

The IRS has supplied its auditors with the following twenty (20) criteria by which to determine whether a provider of services is an employee or an independent contractor. No single factor is determinative; however the following are used to gauge the degree of the worker's economic dependency on the employer:

1. Instructions. Does the business require the worker to follow their instructions on how work is to be performed? If yes, this generally indicates employee status. An independent contractor will usually decide how the project will be completed.
2. Training. Does the business provide training to the worker? If you're hiring a person for a job they are not trained for and providing them with the training to carry it out, that person is likely an employee.
3. Integration. Are the worker's services an integral part of the business? This indicates employee status because it demonstrates the business maintains control and direction over the worker.
4. Services Rendered Personally. Does the business require the worker to perform all services personally? Independent contractors should have the option of hiring other workers to perform the work. Agreements for personal services indicate employee status.
5. Hiring, Supervising, and Paying Assistants. Does the business hire, supervise, and pay the worker's assistants? If so, then it is a good indication of employee status. An independent contractor should pay his own assistants.
6. Continuing Relationship. Does the business have an ongoing relationship with the worker? This could be viewed as employee status.
7. Set Hours. Does the business set the schedule and hours of the worker? Independent contractors generally set their own work schedules.
8. Full-Time Requirement. Does the business require the worker full-time? If so, this would indicate employee status because the business controls the worker's availability and prevents them from working for other employers.
9. Employer's Premises. Does the business provide the workspace? This could possibly suggest control over the worker, especially if the work could be performed elsewhere.
10. Order or Sequence. Does the business determine the order or sequence of the work to be performed? Again, this suggests control over the worker and employee status.
11. Oral or Written Reports. Does the business require oral or written reports? The IRS believes that the requirement that a worker submit oral or written reports indicates employee status.
12. Payment Method. Does the business pay by the hour, week, month, or some other regular basis? An independent contractor is normally paid at the end of a job, task, or by contractual arrangement.
13. Payment of Business Expenses. Does the business pay the worker's business and travel expense? This would be an indication that the business is directing the worker's business activity, and would demonstrate an employee relationship.
14. Tools and Materials. Does the business provide tools and materials to the worker? Independent contractors normally provide their own tools and equipment.
15. Significant Investment. Does the worker have a significant investment in their own facilities? The lack of any significant investment in the entity on the part of the worker indicates employee status.
16. Realization of Profit or Loss. Does the worker have profits and losses independent of the business? A worker who can realize a profit or suffer a loss as a result of services provided generally would be classified as an independent contractor.
17. Services Available to Others. Does the worker have other clients? An independent contractor usually provides services to multiple unrelated entities, whereas an employee will provide services exclusively to one employer.
18. Working for More than One Entity. Does the worker market their services to the general public? This would indicate that the worker is an independent contractor.
19. Right to Discharge. Does the business have the right to discharge the worker at any time? The right to fire a worker is a factor indicating the worker is an employee. An independent contractor would only be discharged for failure to meet contractual obligations.
20. Right to Terminate. Does the worker have the right to quit at any time? If so, this would indicate an employee relationship. An independent contractor is under contract and generally cannot quit until the project is completed.

The foregoing listing is not intended to be all inclusive, but merely a guideline for some of the more obvious issues considered in each and every case brought into review by the Internal Revenue Service and other taxing agencies. No one point or grouping of points is conclusive evidence as to the determination of employee vs. independent contractor status. Each of these tests contains a degree of subjectivity, but the primary component in each is the degree of control exercised by the employer over the activities of the service provider. As that control increases, the likelihood of the worker's employee status increases. For that reason, every employer should carefully examine the relevant criteria to ensure the proper classification of its workforce.

Stop letting the tail wag the dog........fire him quick before it spreads to other employees. And yes, document any and all issues, dot those eyes and cross those t's!!!

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2002 VW Passat 4Motion V6
1957 Aristocraft Torpedo Boat

If he is an independent contractor you cannot treat him like an employee. He can do what work he wants, he can be late and tell you he is working another job. You can either cancel his contract or live with it -

On the side of caution - I have seen this situation play out before where the contractors is no longer needed and he marches right to Labor Board and snitches you out for not taking taxes out of his pay. Giving him a work vehicle and not charging him for it you are setting yourself up for a real good lesson in FLSA.

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As tom and MedMech...er...Howitzer, have indicated, this "emplyee" may be an independent contractor.

Employers want to save on labor costs by re-classifying bona fide employees as independent contractor. Yet, the employer wants to maintain the same amount of control over the "independent" contractor as they have over a regular employee.

The IRS and your state's Labor Commissioner take a dim view on this.

Here is a link to the IRS publication explaining the difference between what an independent contractor is and what he is not.

Independent Contractors

Good luck.

__________________
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1989 300TE "Alice"
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Not in this weather!

I'll echo Howitzer, Tom, GBurg and Benz-LGB.


Howitzer has the IRS criteria right there. Flesh it out: Does this guy work for any others? Does he advertise? Does he carry his own business insurance? Does he have his own business cards? Absence of these lean to him being an employee.

And as Tom said, check your STATE laws. Here in NJ, the definition of employee is much much looser than the federal guidelines. To the point where is you have a bar and hire a band for more than 6 weeks I think it is, they are classified as employees for NJ unemployment purposes. Much tighter than IRS.

Someone said check with you accountant. I agree.
I don't know Florida unemployment rules (or even if they have any).

The worst case scenario: Fire the guy. So, he's got a family to feed. Runs down to Unemployment Office. Says he worked for you for xx years. State checks and sees no record of this guy as being an employee. State comes calling.
He then calls IRS. Then they might come to visit you.
Depending on what a fired empoyee says (fact or fiction) to IRS about you, it could get nasty or they might not bother with a small fish.

Further: Don't know about your business, but here the landscapers ALL hire Mexicans. I would not be surprised if some of them are paid in cash. Consider what this guy might be able to tell Fla and the IRS about your business employment practices, before you do anything rash. If you're clean except for this guy, not too much exposure. But they will probably audit you for the past few years.

I always warn my clients about the risks of hidden or disguised employees. Sometimes they listen. Sometimes they don't.
(At least illegals aren't going to go file for unemployment..yet )

Don't recall reading this, but do you have anything in writing establishing this independent contractor relationship?
FWIW, if you were in NJ I'd worry more about the state than the IRS.

Good luck.

I was going to post another thread regarding this issue, but I found this old one.

He is now a former contractor and I couldn't be any happier.

I actually forced him out instead of firing him, making his life ever more difficult until he resigned.

I hired 2 students to work part time and am getting more things accomplished than ever before.

He has been gone for 3 months now and not one of my clients has contacted me that he has been trying to go after them. ALL is well.

.02

P.S.

I forgot to mention that in prior years, I had given him a 1099(2-3 years ago).

This past year, I had been paying him right out of my pocket, so he has nothing to stand on.

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Enough about me, how are you doing?

And my accountant never wants to know about cash...

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Enough about me, how are you doing?