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Independent Contractor - Scheduling Questions

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Kozi

Junior Member
What is the name of your state (only U.S. law)? Wisconsin.

I just started work as an independent contractor. I signed a contract but from what I can see it doesn't have any information as to the hours or schedule you are required to work.

Now, I'm scheduled 25 hours a week, set times/days each week and the only way I can take off is if I can find someone ELSE within the company to cover the shift I need covered. So if I were to go on vacation for a week I'd need to get people to cover all 25 hours of my shift. This has proven to be impossible to do. No one cares/wants to take my hours, so I'm unsure of what to do. The only way I can change my schedule permanently or take time off for a doctor appointment, emergency or ANYTHING is to have someone else be willing to cover my time or switch with me. This has yet to happen..

Can they legally hold you to a set schedule when you're an independent contractor and the contract makes no mention of it? I am just not sure of what if any action I can take without the risk of loosing my job entirely.

Thank you for your time and sorry for the trouble.
 


cbg

I'm a Northern Girl
The fact that you have a set schedule can be supporting evidence if you are trying to prove that you are not an independent contractor but an employee. It is not, in and of itself, enough to prove that you are an employee.

There is nothing illegal about having a set schedule and no law that addresses the issue directly.
 

LdiJ

Senior Member
The fact that you have a set schedule can be supporting evidence if you are trying to prove that you are not an independent contractor but an employee. It is not, in and of itself, enough to prove that you are an employee.

There is nothing illegal about having a set schedule and no law that addresses the issue directly.
I don't disagree, but I would like to reiterate that one of the significant factors in determining whether or not someone is an independent contractor, vs an employee, is having set hours. If you have set hours, then almost automatically some of the other factors are going to come into play as well.
 

cbg

I'm a Northern Girl
Agree completely. If the OP were trying to prove that he was an employee, this would be good supporting evidence, no question about it.

But the IRS has stated that there is no one single factor that categorically determines IC vs. employee status. Therefore, having a set schedule does not, in and of itself, make him an employee. It may be that in combination with other factors he is found to be an employee, but this single factor is not enough.

However his quesion is, can he be held to a set schedule if there isn't one in the contract? THE LAW does not say that he can't be. Since we haven't read the contract, we can't say if there are other factors which might affect the employer's ability to hold him to a defined schedule. But regardless of whether he's an IC or an employee, the answer is yes, he can; an employee can definitely be held to a set schedule regardless of whether there is a contract that says so or not, and there isn't any law that says an IC CAN'T be held to a set schedule. The employer is not violating the law by doing so. He may be playing fast and loose with the IC status and in danger of making his IC an employee, but he is not violating a law.
 

eerelations

Senior Member
Agree that while a set schedule can be a factor in determining an IC vs employee issue, it isn't always. As an example, in one of my previous companies, a small advertising company, we had a plumber coming in once a month to do maintenance work in our washrooms. His schedule was the third Tuesday of every month from 9.00 am to noon. However, no way was he a misclassified employee.

On a slightly different note, OP, did you know that even if you're reclassified as an employee, your company is not legally obliged to allow you to take time off, and if it does allow you to do this, iot may legally require you to find alternate coverage while you're off? In other words, your issues won't change...
 

Mass_Shyster

Senior Member
  • I signed a contract
  • Can they legally hold you to a set schedule
You need to read your contract to see what action, if any, they can take if you fail to adhere to their schedule. You will also need to determine if the terms of the contract are legally enforceable. You may need to see a local attorney to make that determination.
 

Kozi

Junior Member
Thanks so much for all of your replies. I seriously appreciate it. (I got this job with the hopes of helping settle a lot of my severe anxiety and stress problems.. and while the work it's self does not bother me the loops I am having to jump through to get ANY time off are driving me up a wall with anxiety right now. I can't even bring myself to login to my work e-mail because I'm so nervous.)

From what I can see the contract makes absolutely no mention of hours or schedules.

When I was told about the job, from someone who worked there previously, they told me it was generally 10-13 hours SCHEDULED a week and you can work above and beyond any time you wish, IF you wish to. (I figured that would be great for a full time college student.)

Well I was scheduled for 5 days a week 5 hours a day REQUIRED, as in.. we can't take off or call in. If we need the day off, have an emergency, etc, we have to find some OTHER co-worker(other individual contractor) to cover that shift for us.

I stupidly accepted the hours without knowing what my school's schedule would be this upcoming fall. (Not to mention I was desperate for a job and had no clue what I'd actually be making hourly prior to STARTING the job.) Now I'm finding it impossible to get anyone to cover ANY of my shifts when I have an appointment, need to go to the campus office or anything else, really.

Not to mention I'm making about 4 dollars an hour, or that's what it averages out to(before taxes as they take none out, I am setting my own aside for paying later) considering some of my scheduled hours just end up being dead.

The more I think about this in my head the more it seems like they are doing something seriously wrong.

Now, onto dumb questions, and I'm sorry for this.. but I assume the company benefits somehow by hiring us as 'contractors' and not 'employees', right? So wouldn't they need to adhere to specific rules or guidelines to keep the status as hiring contractors and not employees?

I am terribly sorry if some of this doesn't make sense, I am very bad with legal things and have little understanding of most of it. Also, I am happy to share the contract with anyone who would be interested in viewing it. Just PM me your e-mail or some other way to send it to you.
 

cbg

I'm a Northern Girl
Yes, the company benefits from hiring IC's instead of employees. You're right.

You're also right that the IC's have to fit the definition of IC's or they default to employees - at least, I assume that's what you mean.

The point is, though, that having a set schedule does NOT automatically convert you into an employee. There is NO one single factor that you can look at and say, "X is happening? Then they're automatically employees".

There is a list of a number of factors - I think there are twenty or more - that are used for the definition. It is a preponderance of evidence, not any one single factor, that turns the definition.
 

Kozi

Junior Member
Yes, the company benefits from hiring IC's instead of employees. You're right.

You're also right that the IC's have to fit the definition of IC's or they default to employees - at least, I assume that's what you mean.

The point is, though, that having a set schedule does NOT automatically convert you into an employee. There is NO one single factor that you can look at and say, "X is happening? Then they're automatically employees".

There is a list of a number of factors - I think there are twenty or more - that are used for the definition. It is a preponderance of evidence, not any one single factor, that turns the definition.
Thanks, I definitely get what you mean.. and I am not even wanting to take them to court or to try, I really just want to find out if what they are doing is WRONG and if I have any way to stand up for myself, really. I want to, but I'm pretty sure(and afraid) they will just straight up fire me if I 'argue' or 'make trouble' if you know what I mean? =/

Is there anywhere to view that list, of different factors that play into that type of a situation?
 

LdiJ

Senior Member
Agree that while a set schedule can be a factor in determining an IC vs employee issue, it isn't always. As an example, in one of my previous companies, a small advertising company, we had a plumber coming in once a month to do maintenance work in our washrooms. His schedule was the third Tuesday of every month from 9.00 am to noon. However, no way was he a misclassified employee.

On a slightly different note, OP, did you know that even if you're reclassified as an employee, your company is not legally obliged to allow you to take time off, and if it does allow you to do this, iot may legally require you to find alternate coverage while you're off? In other words, your issues won't change...
I don't think that anyone would attempt to say that the plumber was misclassified in that scenario.

One of the things that I was trying to point out was that if someone had a set schedule of say 25 hours a week, like the OP does, it often leads to other factors that point to misclassification. IE, if there is a set schedule its likely that the employer is also providing the materials, instructing the person how to do the work, controlling the work environment, etc. etc.
 

cbg

I'm a Northern Girl
Sure there is.

And please understand that I am not saying that you're not an employee or that you are an independent contractor. It's entirely possible that you have been mis-classified and you should be an employee. What I am saying is that the answer to that question is not controlled exclusively by whether you have a set schedule or not.

http://www.irs.gov/Businesses/Small-Businesses-&-Self-Employed/Independent-Contractor-(Self-Employed)-or-Employee%3F
 

Kozi

Junior Member
I just think it seems a little crazy that we're required to get someone else to cover our SET hours. Any employee who works their own set hours can work above and beyond those hours any time they wish to get more money, essentially. So if they can work any extra hours any time they want why should they want to take someone else's hours. Does that make sense? =/ There is no real 'advantage' to taking someone else's hours, so the way they have it set up is odd. No benefits to you for helping out, and hey, what if that shift is often a dead one? (Like one where it's so slow I make three dollars for the entire hour, for example.)

I guess I've never seen an environment like this before. They could be perfectly just in the way they do things. I wasn't sure though and a friend suspected they may be breaking some 'rules'(possibly laws, depending on what it was) so she suggested I post here. I'm sorry to trouble you, though.

When I've been an employee we at least had a way to request off, or to post our shift on a board where others who wanted more hours(and could not get them unless scheduled) could pick them up for more money. Or heck, you could call in if it was an EMERGENCY. I mean, I am not expecting a day off any time I want every week, but I am beginning to realize getting any time covered for any plans is going to be impossible if I couldn't get one five hour shift covered(with two weeks prior notice to coworkers) for a doctor's appointment.
 

cbg

I'm a Northern Girl
And, BTW, an employee ABSOLUTELY can be required to adhere to a set schedule and there is NO requirement that the employer put it in writing or give the employee any say in what that schedule is. Even if you are determined to be an employee, it's not likely to change the situation as far as your schedule goes - in fact, it might make the situation worse. So think about what your ultimate goal is.
 
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eerelations

Senior Member
I agree with cbg. And OP, as I also said, even if you're really an employee, your employer is still legally allowed to:

  • change your schedule and weekly hours as often as it wants to (right up to and including every minute);
  • require you to find coverage when you take time off no matter what the reason; and
  • prohibit you from taking any time off at all for any reason except FMLA leave.
 

justalayman

Senior Member
I don't disagree, but I would like to reiterate that one of the significant factors in determining whether or not someone is an independent contractor, vs an employee, is having set hours. If you have set hours, then almost automatically some of the other factors are going to come into play as well.

set hours are nearly meaningless when attempting to make the determination in many situations. As an example; If I was an IC vendor selling hot dogs at the local college football games, want to guess as to whether I had set hours or not? Of course I do; whenever there is a game.

want to guess what happens if I breach my contract to provide the service during a football game without me finding a replacement for me at those games?

In this situation, OP is required to provide services during a set period of time. If OP cannot be there, he is required to ensure that his obligations are covered by somebody else. That is quite typical in an IC situation.

Often times I think people confuse an IC situation such as hiring a construction contractor to do work for you and an IC situation where the company hires a company (the IC) to perform a service during some specific set period of the day. In the construction situation, yes, obligating the contractor to be "on the job" during an specific period of time does push it into an employee type situation but not so in the latter.
 

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