• Laura the Labor Lawyer

Ask Laura: Popcorn Round!

Q: Do you think the Biden’s vaccine mandate will apply to 1099 workers, since they are not considered “employees”? If that is the case, couldn’t companies just make all their employees 1099 workers?


A: There are two general classes of workers, independent contractors and employees. These two categories have tax implications. Companies report payments to independent contractors via IRS Form 1099, and payments to employees via IRS Form W-2. More importantly, companies are required to withhold income taxes from W-2 employees, but they are not required to withhold taxes from 1099 independent contractors. So why doesn’t everyone become an independent contractor, especially in the age of vaccine mandates? Our federal government, and many state governments do not like the independent contractor classification. They think it gives people too much freedom! So there are many restrictions on who can be an independent contractor. In a nutshell, a person must have their own business with multiple clients in order to lawfully work as an independent contractor. This takes some time and effort to set up. However, for workers who enjoy freedom and flexibility, it can be a great option. Q: How do we approach the vaccine mandate topic when applying for jobs? A: According to the Wall Street Journal, applicants are putting their (positive) vaccine status on their resumes, as an added credential. This could make job-hunting more challenging for workers who choose not to take the vaccine. I encourage unvaccinated applicants to focus on their job-related strengths and experiences. If an employer asks about your vaccine status, I encourage you to be truthful but also be brief. Try to re-direct the conversation to your actual qualifications. And to find employers who won’t care about your vaccination status, make sure to apply on RedBalloon.work! Q: What happens to your pension when you're fired over a vaccine mandate? A: If your company offers pension benefits, they will be governed by a written pension plan. This will lay out the requirements for vesting, including age, length of service, and impact of termination vs. retirement. I encourage you to get a copy of the written pension plan and review it carefully, perhaps with a pension representative or attorney. Depending on your overall relationship with your employer, you may be able to negotiate an exit which leaves your pension benefits intact. Q: My sister is proudly unjabbed and as of recent, she found out she is growing a little girl in her womb. Her job has given her a deadline to get vaxxed or get fired. Is there access to information that could protect her and baby apart from just losing her salary and all of her benefits? A: Congratulations to your sister on the new baby! For help with exemptions, she can check out this resource. For information on litigation, she can check out this resource. Otherwise, I encourage your sister to use this unexpected time off to focus on what is most important – growing the next generation of freedom-lovers. Q: My company wants to impose a $250.00 per month surcharge for being unvaccinated. Can I fight this? A: Having to pay $250 just because of your vaccination status feels discriminatory. As Americans, we have state and federal civil rights laws that protect certain categories against discrimination. However, vaccination status is not a protected category (unless you live in Montana!)

Nonetheless, religion and disability are protected categories. If you have refused the vaccine based on religion or disability / medical condition, you may be able to argue the surcharge has a discriminatory impact. Depending on the state where you live, judges may or may not be sympathetic to that argument. I encourage you to contact a local lawyer for more specific information. Laura, the Labor Lawyer

Please note that this post does not constitute legal advice on your specific situation, and you do not have an attorney-client relationship with Laura. If you have questions for Laura, please send to laura@redballoon.work. Such questions may be used for general edification in this column.

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