What are my rights if I don’t think I am being paid as an “employee”?

UPDATED: Dec 21, 2011

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What are my rights if I don’t think I am being paid as an “employee”?

I am a taxed employee and paid a rate of $28 per job for up to 1 hour of work on that job, and paid in 15 minute intervals thereafter. I am also paid a $30 travel fee per day but not paid for travel “time” to each job even though I am classified as an employee. I am also required to work multiple Saturdays without any overtime pay for anything worked over 40 hours during the week. My employer has given me written notice that he will no longer pay the mileage or trip fee; jobs will be a flat rate regardless of time spent on the job. I pay for my own phone, truck, tools, supplies and postage without reimbursement. Is this legal?

Asked on December 21, 2011 under Employment Labor Law, California


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 11 years ago | Contributor

The issue is whether you are an independent contractor or an employee. If an employee, you don't need to be paid anything other than hourly wage (pro rated as applicable)--so you don't have to get a travel fee or mileage reimbursement, for example--though you must be paid for all time spent traveling for work (apart from the morning and evening commute to/from work). You would also be eligible for overtime. On the other hand, if you are independent contractor, you do not get overtime or have to be paid for time spent traveling--you would be paid whatever the agreement is with the employer (which may be changed by the employer, if there is no contract guarantying it for set time). Some of what you write--your own truck, tools, supplies, etc.--suggests strongly that you are an independent contractor; however, because this is a critical determination and a very fact-specific one, you should consult with an employment law attorney who can evaluate the nature of your employment in detail.

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