If he’s an independent contractor he isn’t covered by those laws. That doesn’t mean that he doesn’t have to be paid, I don’t know what laws may apply in that case. But if they aren’t required to pay for the time, his tacit approval could ruin any chance he has to collect.
Independent contractors can be paid by the hour.
They can, but it’s extremely rare and generally limited to very specific professional capacities (law, for example). In any event, the OP is also not using his own equipment, doesn’t get to set his schedule, and there’s no indication that he can just get someone else to do the job. He’s not an independent contractor.
Most staffing agencies have a W2 arrangement with their workers, not a 1099. FWIW, as a 1099 I mostly work hourly, because that’s how the client wanted to handle it. I rarely do project fees; there’s only one client I’ve ever done that for in recent memory. (In the early days I did it somewhat more often, but then I discovered scope creep…)
If he filled out an I-9 form when he started work, and the agency withholds taxes from his paycheck, he’s a W2 employee. If he filled out a W-9, he’s a 1099 contractor and is responsible for his own taxes (no withholdings). Although this is still subject to the legal definition of independent contractor. If he’s not allowed to set his own schedule, yes, he legally should be W2. (And there are places who will try to play fast and loose with the legal definition so they can have a cheaper employee.)
Except he may have to fight with the agency, because he has already worked time that they clearly don’t plan to pay him for. Those work hours are a done deal – the agency owes him money for that. If they’ve been getting him work, it may be worth trying a polite conversation first to remind them of how the law works – and if they’re good, they’ll pay up without a fight. If they offer any resistance/justification at all, it’s not worth continuing to work for this agency, so find another. Whether or not he wants to lose out on what looks like amounts to a couple hundred dollars is up to him, but he is legally entitled to it and I wouldn’t walk away from money, not these days.
It’s not rare at all. There are an enormous number of people who provide services as contractors, and many of them on an hourly basis. There are a variety of ways to distinquish an independent contractor from an employee, so individual qualifications such as setting a schedule or using his own equipment are not requirements, just possible means of categorizing. However, this may be one of the case where it does matter. His terms with the staffing company are probably the deciding factor here, and they likely withhold taxes and are responsible for payment of placements.
It’s surely not going to amount to more than a few hours for one day, though, right? If this agency continues to find him work, (and learns he won’t take ‘compromise’ jobs!), then he’d have to weigh, a few hrs pay, (after a possibly long and ugly fight, effectively burning this bridge to employment!), against how much future employment the agency will likely provide him. How much inconvenience would be involved in switching agencies would certainly be a factor, for me.
I’d think a little harder about what I was walking away from, future employment wise, over a few hours wages. Especially in these times.
3 hours of unpaid travel time is not a “compromise”. It’s a jack.
Exercising control over how work is performed is a requirement. The others are more flexible.
Perhaps there are labor laws where that is a requirement. It is not a requirement under tax laws.
Bolding mine. From this site.
Assuming you are hourly, you should be paid for that time. Salaried employees usually get no compensation, either monetary or time-wise.
We’re not talking about tax laws.
The IRS’ application of the independent contractor tests is determinative *only *as to tax liability. For the purpose of determining whether an employer/employee relationship exists, the putative employer’s right to control the work is key. Redd v. Summers, 232 F.3d 933 (D.C. Cir. 2000)
It’s true that even under the Spirides test (applied in Redd) “no one factor is determinative”, but in practice the right of control is the sine qua non of independent contractor analysis.
He worked for two days before being informed they were not paying him, not one. If some of these trips are 3 hours one way, yeah, I can see it adding up to a couple hundred, especially if he’s continued working since then.
What he’s walking away from? If they don’t immediately apologize and pay him for that time, he’s walking away from an employer who intends to cheat him out of hard-earned money whenever the opportunity presents itself. Do YOU want to work for a place like that?
In any case, I would suspect that if he’s with one staffing agency (especially these days), he’s probably working with several. If not, he needs to get on that. If he doesn’t find another gig right away, I can’t see much difference from working a gig he’s illegally not being compensated for, except that he has less time to look for paid work while working for nothing.
Ok, I think we agree that in the OP’s case it will be considered employment, especially since the OP wouldn’t contest that. Spirides does use the same kind of language to describe the situation as the IRS does. But it’s possible to be a contractor under the same limited circumstance described here. There are of course, many more details in each case that would determine the outcome.
These labor laws are the reason many commercial vehicles have tracking systems now. Employees en route for business could pull over and just take a paid nap without much chance of getting caught. The local utility company put this in their trucks a few years ago. Since then the employees now have to drive all the way to the worksite, then walk to the nearest Dunkin’ Donuts.
Yes. I’m more interested in whether he is an employee of the “staffing agency”.
I see two possible scenarios here, and a lot depends on who’s paying for what.
In one scenario, the “client” is itself a sort of staffing agency, which does work for other clients. In that case I think you have to be paid for travel time. It sounds like company you are working for is paying for all the work (branch locations) and they should pay the staffing agency for your travel time once you get there.
The other scenario is that your staffing agency is providing the travel to various jobs. If the job sites are unrelated to each other (i.e., separate companies, not branch offices of one company) then your staffing agency could consider time spent in the company van a benefit.
There used to be agencies that paid daily wages and hauled employees from site to site in a van (Manpower, etc.). In those cases the employees didn’t get paid for travel time, but they did get a free ride and–usually–a “draw” so they could buy lunch (and the hope, on the part of Manpower, that a certain percentage of them would take their lunch “draw” which was less than than the pay for the half-day’s work they’d done, and not come back).
You know some companies chart the client for travel time. Plumbers do; maid services generally don’t. It seems to depend on how much training is required to do the job. So if you needed a lot of training to land this job, you could probably argue that you should be paid for travel time.
Three hours each way is excessive in any case. Maybe their HQ is in the local area, but a branch office three hours away is not.
Those agencies still exist. They’re called labor pools, professional employer organizations, or employee leasing companies.
I would definitely call the Dept of Labor. First of all, they can tell you (without it costing you anything) if what they are doing is legal. Assuming it’s not, they’ll go after the employer so that they will not only stop shafting you, but also all the other people who work there. And you’ll get paid for whatever they should have paid you for your work.
I am a direct employee of the agency.
I do a weekly payroll on Friday, a check gets cut weekly.
I am eligible for benefits at the 90 day point, from the agency, not the client.
Okay.
I fire up the car, drive to the local hospital’s main facility, where their maintenance staff is located.
I load some equipment into a minivan owned by the hospital system, and then one of their maintenance men drives me to a smaller satellite hospital owned by the same hospital system.
We go inside, install some new equipment, fix some existing equipment, and remove other equipment from the site.
We then load the removed equipment into the minivan and travel to the next satellite office, or hospital in another metro area.
At some point we get a half hour lunch.
Rinse, wash and repeat as needed, and then the van recycles to the local hospital’s main facility.
At that point, I help unload the equipment that’s in the van. Then I am off duty; I drive home in my private car.
Hint:
I’m not a maintenance guy in the conventional sense, and I’m not working for hospitals, but the analogy is very close.
Well you are good then. They owe you the money for time spent on the job, which includes the driving time. Their agreement with the client might make it difficult for them, so you should let them know right away about this. The agency is probably in a bind with the client who doesn’t want to pay. To avoid any difficulty in reaching the 90 day mark, just eat the driving time. But you have to consider what would happen if this assignment was extended or repeated sometime in the future.
Since you’ve already started:
Document everything! At the very least, write down exactly when you walk in the door at the first facility, when you leave for and come back from lunch and when you leave the facility at the end of the day. No matter what happens, you’re better off if you can say exactly how many hours you worked each day. Go right now, and write a note with your best recollection of the times from the previous two days (adding to the note that this is a recollection written down today). If you can document things each day with something hard to fake (send a text when you arrive, so you have a timestamp), even better, but getting it down on paper or in a computer file is the biggest part of the battle.
Write down what you remember about the phone call, too, including the date, time, who called, what they said, and what you said. Put a copy of the original assignment agreement (the one that doesn’t mention ‘no pay for travel’) in that folder, too. Keep it all at home, not at the temp office, obviously.
Just believe me, if you ever wind up in front of a lawyer, judge or even Dept of Labor staffer, you will be very, very glad you’ve got everything written down.
Now, once you’ve written your note about the last two days you can decide what to do next. Again, the main options are suck it up, quit the assignment for unspecified reasons (you might want to confirm that you did understand them correctly about not being paid for travel; this is pretty egregious so it’s worth double-checking before you do anything irrevocable), or push to get what they owe you, at the risk of being blackballed for future assignments. The in-between option is pretend you didn’t get the phone call, so on Friday when you do your hours, ask why you’re not getting paid correctly for the time you worked.
You will be happy to know that I have been taking meticulous notes about the time since the morning of day two.
Day one had little travel time.