I work as a cook and my employer gave me a 1099MISC. They didn't withhold any payroll tax and I have to pay steep tax rate like a self-employed contractor. Is this legal?

[ortegaseasoning]

I fit the criteria of a employee, as I earn an hourly rate, receive direct instruction and supervision, use the materials at the restaurant, have no control over the product I make, and have no opportunity for profit or loss. I do not receive tips. My employer said I received a 1099 MISC instead of a W2 because I worked part-time (between 15-30 hours per week), though I could not find any material to support this decision on the IRS website. I know about the SS-8 form but I do not know if I qualify.

[CarolynM · Accepted solution]

As a private organization, it is not illegal under federal law. It may, however, be illegal under the laws of your state. 

For tax purposes, the IRS uses common law. Their language:

 A worker is an employee if the firm has the right to control what will be done and how it will be done. 

It is unlikely as a cook you control what will be done and how.  

From the SS-8 form and the facts you have provided, it appears you qualify and should be a W-2 employee. Your status as part-time employee is not a factor. 

For more information and a copy of the form, follow these links:

Form SS-8 Instructions

Form SS-8