Last year I posted a list of New Year’s resolutions for the workplace. This year I decided to provide New Year’s resolutions for independent contractors who think they may have been improperly classified and as a result lost out on pay and benefits they would have otherwise received.
1. What ever the business may do in regards to keeping track of my hours I will make sure I keep my own log of the hours I worked.
If there is an issue with classification and it turns out you are owed unpaid overtime, then you need to have an idea of how many hours you have worked. If the company does not keep accurate records then the court will take the worker’s reasonable good faith estimate. Keep records so it is easy for you to make that estimate.
2. I will make sure I keep any correspondence between myself and the business. This is especially important if the company sends the correspondence to somewhere they control (i.e. a company email account).
Whether a worker is an employee or an independent contractor commonly rests on how much control the company had over the worker’s work. Emails directing you to be somewhere at a certain time or do a task in a certain way can help to show that the company exercised control over your work. If the emails go to a company controlled email account then you may find your access to those messages will be restricted or ended as soon as you are terminated.
3. I will keep records of any deductions that the company took from my pay for any reason.
Companies that employ independent contractors may make the contractor pay for things that they would typically provide for an employee or cover for an employee. For example, truck drivers may be asked to pay for maintenance on trucks they don’t own. These deductions may be illegal under state and federal law if you are later classified as an employee. Having possession of the records makes it easier to bring a case in the first place.
4. I will always keep a copy of the contractor agreement that I signed.
Too many people don’t have a copy of the contract that sets out their relationship with the company. It is maybe the most important document for an independent contractor/business relationship. The contract sets out your rights and responsibilities and may be very important when deciding whether you are an employee or an independent contractor. Don’t let the company keep possession of the only copy of the contract and don’t sign the contract before they give you a copy. This is true for any agreement that you sign with a business or employer.
5. I will contact my federal Representative and Senator and ask them to support the Payroll Fraud Protection Act of 2013 (S. 1687).
As I mentioned not too long ago, Senators Bob Casey (D-PA), Tom Harkin (D-IA), and Sherrod Brown (D-OH) introduced the Payroll Fraud Protection Act of 2013 on 11/12/13. This bill helps workers who have been improperly classified as an independent contractor by requiring double damages when the employer misclassifies the employee as an independent contractor and then fails to pay overtime and/or minimum wage. The bill also introduces an anti-retaliation provision that protects independent contractors who voice concerns about their classification. This bill is needed because improper classification is rampant in many industries. However the protections for workers and penalties for businesses who violate the law have not kept up with the changing employment landscape.
Bonus Resolution: I will become familiar with the tests that courts and agencies use to determine whether a worker is properly classified as an independent contractor or employee.
State courts, federal courts, and different agencies will use different tests or factors to determine whether a worker has been properly classified. Information can be found at various state Department of Labor websites. For instance, in Georgia go to www.dol.state.ga.us. Information about the tests used in federal court can be found at the federal Department of Labor website or at the IRS website.