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Are there any protections for independent contractors?

New Port Richey, FL |

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.

Attorney Answers 3

Posted

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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Posted

Thank you for your responses. He is working as a database modeler and his "employer" is like a recruiter who gets paid by the company and then hires my husband to do the work. My husband, though, works in an office, must adhere to a sched (M-F 8-5) under a project manager. It reminds me of temp./employment agency. I don't have all the information on this "employer" but from what you have outlined what constitutes an employees, it sounds like he is being misclassified as you said. My husband is wont to just be rid of this guy and count it as a loss. Would this be a mistake; to not go after him? Or would the cure be worse than the problem. Total amount of wages is around $4200 for the month.

Jack Richard Lebowitz

Jack Richard Lebowitz

Posted

Employment law is not my main area of concentration, but I do know the general parameters of when there's a "problem" and a "legal issue". I'd consult with someone like Mr. Yormak above and also check with the state labor department (that's quick, free and they do have enforcement powers), I do know there's some kind of shameful carve out the computer industry lobbied in which makes a lot of IT professionals "independent contractors" by law...but aside from the misclassification, wage theft is wage theft and, worst case, the word "contractor" contains CONTRACT. He did the work, he deserves to be paid for it on the agreed upon terms.

Posted

Something is not right. If your husband is an independent contractor, he does not have an "employer", he has a "customer." It is possible that your husband is being misclassify as an independent contractor when he should be an employee.

This does not constitute legal advice and is purely informational and we do not have an attorney-client relationship until a fee agreement is signed. The details of your case can vary slightly and the legal analysis can be then totally different. Do not rely on legal aswers to address your particular situation but seek a direct contact wih an attorney.

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Posted

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.

This is general information only and does not constitute legal advice, nor does this communication in any way establish an attorney-client relationship. Feel free to contact me directly for further information at 239-985-9691.

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