What to do if I’m labeled as an independent contractor for a cleaning company I work for, however, I think I fit more as an employee then a contractor?

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What to do if I’m labeled as an independent contractor for a cleaning company I work for, however, I think I fit more as an employee then a contractor?

I have a weekly schedule, an hourly rate that doesn’t fluctate after years of work set by them, I have trained other employees in their cleaning style, and they provide the cleaning supplies. We often carpool with the owners to various locations but they don’t pay me for my time driving with them in the car, only the cleaning time. We have a set schedule for the day, we may start at 9 and get done at 3 but instead of an employee getting paid for all 6 hours, I’ll be paid for 4. Is this legal?

Asked on November 26, 2012 under Employment Labor Law, California


M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

To make a determination as to whether an person is an employee or independent contractor the relationship of the worker and the business must be examined. The main focus of the examination is control and independence. This usually falls into 3 categories:

Behavioral Control:  Does the business have the right to direct and control how the worker does their work duties and what is the level of instruction that the business gives the worker?  The more specific these instructions are, the more likely the worker is an employee.  Also, if the employer has the right to control how the work results are achieved, then the worker may well be termed an employee. The key is if the business has retained the right to control the details of a worker's performance.

Financial Control:  Does the business have the right to control the business aspects of the worker's job? For example, does the worker have unreimbursed expenses? Independent contractors are more likely to have these expenses than employees. Another indication of independent contractor status would be if the worker can make their services available to other businesses. A further question to ask is whether the worker is paid a regular wage? An employee is typically guaranteed a regular wage amount for a set period of time while an independent contractor may be paid based on a per job basis.

Type of Relationship: Another factor to be considered is the relationship between the business and the worker. Answering yes to any of the following indicates an employee-employer relationship: does the business provide the worker with employee-type benefits, such as insurance, a pension plan, vacation and/or sick pay; is the worker given the expectation that the relationship will continue indefinitely, rather than for a specific project/period, does the business will have the right to direct and control the worker's activities?

Here is a link to a site that will provide further information:  http://www.irs.gov/businesses/small/article/0,,id=99921,00.html

Aryeh Leichter / Leichter Law Firm, APC

Answered 11 years ago | Contributor

It sounds as if you may very well be misclassified as an independent contractor instead of as an employee.  If this is the case, it absolutely is not legal.  Please give me a call (213-381-6557) or email me (ari@leichterlawfirm.com) if you would like to discuss the matter further.

All the best,

Ari Leichter

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