DEAR CARRIE: My son is a part-time karate instructor at a local business. He works five days a week and is paid twice a month. The owner says my son can claim to be an independent contractor. I think this is wrong because I believe he should be paid with a regular pay check minus normal deductions. Am I correct? — Right Move?
DEAR RIGHT: Your instincts are right on target. Independent contractor status is not an arbitrary designation, contrary to the owner’s lackadaisical approach. In order for your son to qualify as an independent contractor, his working relationship with his employer has to meet certain criteria.
Many companies disregard the rules, according to the U.S. Labor Department, which last summer issued some clarifying guidelines on the topic.
“Misclassification of employees as independent contractors is found in an increasing number of workplaces in the United States, in part reflecting larger restructuring of business organizations,” the department said last year.
It highlighted how the courts look at the issue of who is an employee — or not.
“In order to make the determination whether a worker is an employee or an independent contractor under the [federal Fair Labor Standards Act], courts use the multi-factorial ‘economic realities’ test, which focuses on whether the worker is economically dependent on the employer or in business for him or herself,” the department said. “Thus, applying the economic realities test in view of the expansive definition of ‘employ’ under the [FSLA], most workers are employees.”
Unless your son has his own business and controls how he works, he is probably an employee.
Why are some companies so eager to classify employees as independent contractors? For true independent contractors, employers don’t have to pay such things as unemployment and workers’ compensation insurance. And of course independent contractors make tax withholding easier for employers. It’s up to those workers to pay their taxes.
Your son should call the U.S. Labor Department for help in determining his workplace status at 516-338-1890 or 212-264-8185.
DEAR CARRIE: I have worked for a local hospital for more than 30 years. I work from 7 a.m. to 7 p.m. I had been told that I am entitled to one 15-minute paid break and one 30-minute break that is unpaid. When on my unpaid break I must carry a beeper and/or in-house phone. I must respond to any calls or emergencies while on this unpaid break.
Here is the rub: About two months ago, the hospital changed its payroll policy. I now must indicate whether I worked during my 30-minute break. If I do, I will now be paid for this previously unpaid break.
There is a rumor going around that the hospital is being sued for many years of unpaid breaks. In light of all of this I have two questions: Was the unpaid/paid break policy legal for the past 30 years? And would I be entitled to 30 years of back pay for breaks I never really got? — Break Justice?
DEAR BREAK: It depends on your status. If you are an exempt employee, the company doesn’t owe you any money for the extra time you worked, unless a contract says otherwise. Absent a contract, exempt employees can work any number of extra hours without having to be paid for the additional time. Some of those employees are managers or people whose jobs require a college degree.
But I suspect you are hourly since the hospital now insists that you be paid for lunch when you work through it. Hourly employees have to be paid for all the time they work.
You would need to consult a lawyer or call the U.S. Labor Department about any backwages.
The bottom line here is that state law guarantees all employees an uninterrupted meal break when they work more than six hours a day. The break doesn’t have to be paid, but it has to be granted, except in some special circumstances.