Can an independent contractor’s employer dictate the hours that they work?

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Can an independent contractor’s employer dictate the hours that they work?

I am an esthetician at a medical spa. The owner constantly refers to us as independent contractors we are paid commission only and work 9-5. Our taxes are not held out and we get zero benefits. The owner now wants us to sign a contract dictating our hours, vacation days and sick days. Can she legally do this?

Asked on August 7, 2018 under Employment Labor Law, Texas

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 3 years ago | Contributor

She can--but if she does, she will almost certainly turn you into employees, entitled to receive at least minimum wage, get overtime when working more than 40 hours per week, to have her pay the employer portion of withholding tax, and get whatever sick leave or other benefits (if any) your state requires for employees. An independent contractor has a high degree of independence in how, when, and where she does her job; an employee does not. If your employer controls your hours, vacation and sick days, etc., she is exercising a degree of control over you which is not consistent with you being contractors--but is consistent with being employees. So if you have to do this, then contact your state labor department about  filing a complaint for being misclassified as contractors when you are in fact employees.


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