Are You Really an Independent Contracor?
This guide is designed to help Florida workers determine if they are true independent contractors or if they are actually employees.
IntroductionIt is very common in Florida for employers to misclassify their employees as "independent contractors." Many times the misclassification is an honest mistake made by the employer. However, there are some employers who intentionally misclassify their employees in order to avoid paying minimum wage and overtime. The bottom line is this; employees are entitled to minimum wage and overtime, independent contractors are not.
What is an independent contractor?Independent contractors are individuals who own their own businesses. Instead of being employed by an owner, they enter into an agreement to provide services to the owner. In most cases, the services provided are very specific, such as reapairing a sink or painting a building. Most independent contractors have a set skill and they provide that service to many companies, not just one company. Independent contractors wear their own clothing and not uniforms. They also use their own tools and materials.
When you think of an independent contractor, think about a plumber or a carpet cleaner. Those are individuals who come to a job site to perform a specific service and once completed they leave.
What is an employee?An employee is an individual who works directly for the employer. An employee must follow the employer's instructions and likely has a set schedule that she must follow. The employer has the power to set the rate of pay, hours to be worked, and tasks to be completed. The employer can also tell the employee how to do their job; such as telling the employee which tools to use or how to greet a customer. Employees often wear the company's clothing and use company tools and materials.
Employees continue to work for the same employer even after their task has been completed.
Recognizing the differenceAn easy way to recognize the difference is to ask yourself, "is the worker performing normal, day-to-day company duties or is the worker here to complete a specific task?" If the worker is performing normal day-to-day duties such as answering phones, driving a forklift, or washing dishes, then the worker is likely an employee and entitled to minimum wage and overtime.
However, if the worker is there to perform a specific task not related to the day-to-day duties, such as repair the roof, fix a broken sink, paint the office, then it is likely that they are an independent contractor.
ControlAnother thing to look for is which party has the control. Employers cannot tell independent contractors how to do their jobs, which clothes to wear, or when they have to work. Independent contractors set their own rules. Think about how the cable guy tells you he will be there between 12-5. It is the same concept.
On the other hand, employers have a lot of control over their employees. They can tell them what to wear, when to work, and can even discipline them for not following instructions. An employer cannot discipline an independent contractor.
ConclusionDetermining if you are an independent contractor or an employee can be difficult to do alone. If you believe you may be misclassified, contact me for a free consultation. There is no risk to you!