1099 Misclassification Back Pay 2027 Calculator
Calculate back pay owed when a worker was misclassified as 1099 contractor instead of employee — unpaid overtime, FICA, benefits, and FLSA liquidated damages (2x).
The Six-Factor Economic Reality Test
DOL uses a 6-factor 'economic reality' test: nature of work, permanency, skill required, investment, control, opportunity for profit/loss. Most W-2 workers misclassified as 1099 fail factors 1, 4 and 5.
What Back Pay Includes
Unpaid overtime (40hr+ at 1.5x rate). Employer's share of FICA (7.65% of total wages) the contractor paid on Schedule SE. Lost benefits: health insurance, 401k match, PTO, FMLA. State unemployment insurance contributions.
FLSA 2x Liquidated Damages
Federal FLSA awards 2x damages — unpaid wages PLUS equivalent amount as liquidated damages. So $20k unpaid OT = $40k claim. Employer can avoid if shows 'good faith' but threshold is high. State laws may add treble damages.
Statute of Limitations
Federal FLSA: 2 years standard, 3 years willful violation. State wage claims: varies (NY 6 years, CA 4 years, TX 4 years). Filing IRS Form SS-8 starts a separate IRS classification review for tax purposes.
Source: dol.gov FLSA worker classification, irs.gov SS-8 determination. Last updated: May 2026.
Frequently Asked Questions
How long do I have to file?
FLSA: 2 years (3 years if willful). State law often longer — NY 6 years, CA 4 years. File IRS Form SS-8 to start tax classification review (no statute of limitations for tax).
Do I need an attorney?
Yes for FLSA + state claims. Most work on contingency (30-40% of recovery, no upfront cost). Attorney can also recover their fees from defendant under FLSA fee-shifting provisions.
What if employer fights back?
Burden shifts to employer to prove classification was correct using the 6-factor economic reality test. Most lose if they had control over schedule, methods, equipment provided, and exclusive work relationship.
Are punitive damages available?
Federal FLSA: only the 2x liquidated damages. State laws may allow punitive (CA up to 3x). Constructive discharge or retaliation claims allow separate punitive damages.
Is my data private?
Yes. All calculations run in your browser. Inputs are never sent, stored, or shared.