I have been with this company for a year and have been getting paid by the hour. On days that I miss certain hour for whatever reason I deducted the hours (rounding by 30 minute increments). My employer started implementing a time clock where the literally pay me by the minute. If I work 7 hours and 43 minutes then I get paid exactly for that much.
I know they are trying to save money anywhere they can and I rolled along with it for a few months now but due to some shady practices I am noticing as of late I would like to know where I stand legally.
Is it legal for the company to pay you by the minute? Yes, as long as they pay you for every minute that you work.
Is it legal for the company to classify you as a 1099 independent contractor if you meet the legal definition of an employee? No.
Mr. Dal Bon is correct when he says the limited facts you have provided suggest that you may have been misclassified. If (a) you are effectively working full-time for this company (which seems to be the case), (b) this company is your only client, (c) the company has implemented a time clock, and (d) the company is paying you by the minute instead of by the job, those facts are more consistent with employee status than with independent contractor status. You should consult with an employment attorney to determine whether you may have been misclassified.
This definitely seems suspicious. You may have been misclassified as an independent contractor. If that is true your employer could be fined for between $10,000 and $20,000 Cal. Lab. Code Section 226.8. You could be owed overtime payments. Please speak to a wage and hour attorney.
This answer is a general interpretation of the law and is not fact specific to your case. Likewise it does not create an attorney-client relationship. You should seek an attorney for a review of your specific facts and documents.
Yes an hourly 1099 contractor can be paid by the minute, or whatever payment terms that the contracting parties agree to. However, just because an employer classifies an employee as 1099 or tells an employee he/she is an independent contractor, doesn't make an employee an independent contractor. Even if an employee agreed to be classified as an independent contractor An extensive multi-factor analysis, centering around the theme and concept of CONTROL over the worker determines whether the worker is an employee or an independent contractor.
If an employer misclassifies an employee as an independent contractor, the employee may be entitled to extensive unpaid wages, overtime wages, civil penalties, etc. The "Find a lawyer" tab at the top right of Avvo.com can help locate a nearby employment lawyer to consult about these issues.
You should not rely on this response as legal advice. This response does not create an attorney-client relationship nor any professional responsibility for the outcome of your case. Please hire a lawyer as soon as possible to advise you on your circumstances.
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