My husband is working as an independent contractor who initially stated wages would be on a monthly basis. Husband moved to another state for this job and there was some kind of verbal agreement the employer would pay him every two weeks this month to ease expenses. He deposited less than half of due wages(bi-weekly) claiming errors and when came time to send remaining wages, has now stated my husband must wait 60 days before getting paid. We are struggling very badly financially and I don't know what I can do.
I agree with Mr. Boyer, something is not right. The misclassification of employees as something other than employees, such as independent contractors, presents a serious problem for affected employees, employers, and to the entire economy. Misclassified employees are often denied access to critical benefits and protections – such as family and medical leave, overtime, minimum wage and unemployment insurance – to which they are entitled. I think that the fundamental question is whether or not your husband is truly an independent contractor. If he is not really an independent contractor (but merely given that as a title by the employer), then the federal Fair Labor Standards Act kicks in and he would be entitled to overtime, minimum wage and timely payments.
The Department of Labor has said that, in general, an employee, as distinguished from an independent contractor who is engaged in a business of his own, is one who "follows the usual path of an employee" and is dependent on the business that he serves. The factors that the Supreme Court has considered significant, although no single one is regarded as controlling are:
(1) the extent to which the worker's services are an integral part of the employer's business (examples: Does the worker play an integral role in the business by performing the primary type of work that the employer performs for his customers or clients? Does the worker perform a discrete job that is one part of the business' overall process of production? Does the worker supervise any of the company's employees?);
(2) the permanency of the relationship (example: How long has the worker worked for the same company?);
(3) the amount of the worker's investment in facilities and equipment (examples: Is the worker reimbursed for any purchases or materials, supplies, etc.? Does the worker use his or her own tools or equipment?);
(4) the nature and degree of control by the principal (examples: Who decides on what hours to be worked? Who is responsible for quality control? Does the worker work for any other company(s)? Who sets the pay rate?);
(5) the worker's opportunities for profit and loss (examples: Did the worker make any investments such as insurance or bonding? Can the worker earn a profit by performing the job more efficiently or exercising managerial skill or suffer a loss of capital investment?); and
(6) the level of skill required in performing the job and the amount of initiative, judgment, or foresight in open market competition with others required for the success of the claimed independent enterprise (examples: Does the worker perform routine tasks requiring little training? Does the worker advertise independently via yellow pages, business cards, etc.? Does the worker have a separate business site?).
You should remember that some employees are exempt from the FLSA by classification, such as commissioned employees, computer professionals, drivers, salesmen and executives. You should contact a labor & employment attorney right away for advice regarding the specifics of your husband's situation.
Agree with Mr. Boyer. Except for a few occupations where employers got special legislative treatment (some kinds of computer programmers for instance), federal and state labor laws control whether someone is a true contractor or an employee who must be given minimum wages, overtime, unemployment insurance and workers comp benefits. The distinction has to do with whether they set their own hours and working conditions or have to show up at a place of employment at scheduled times under the supervision of managers. Someone doing a casual painting job or outside sales might be an independent contractor.
State labor departments take a dim view of employers misclassifying hourly workers as independent contractors or exempt (management) employees to cheat them of labor law protections or benefits, so the state labor department is a good place to inquire as to whether his employer possibly misclassified his employment and he is entitled to wages. They are also very strict about wages being paid for hourly work and not some kind of commission scheme to avoid paying wages and sometimes there are penalties or double/triple damages for wage theft.
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