Do I have rights?

[Delvianna]

What is the name of your state (only U.S. law)? Florida

I'm an independent contractor where I get paid based off orders for a restaurant. I take incoming calls (never outgoing) and when someone puts in an order for food, I get a certain amount per order. Here's where I have the problem. The phone system isn't categorized, so when you call in the number, it wont say "press 1 for customer service, press 2 to have your order taken". So we get calls meant for managers, people inquiring about what the specials of the day are, problems with orders, problems with credit cards etc. All these calls are NOT paid, since they aren't orders. But because the phone system isnt set up, we are acting like a switch board to get the call where it needs to go.

Is this legal? Or is it because I'm an independent contractor, that I have no rights? If I take 20 calls an hour, 7 of them will be unpaid. This isn't like, sitting around because the phone isn't ringing, this is talking to customers, sympathizing with customers on why their order is late or whatever there is to do when they call in. This IS work!

I'd love to know if I have any rights here as I thought that ever call would be a potential order, not that I would be partially working for free.

 

[justalayman]

If you are legally an independent contractor it is totally legal. You have the option of accepting the terms of your contract or refusing it though.

I suspect you are a misclassified employee though. They situation would still be legal though even of you were an employee as long as your pay is more than minimum wage for the time worked.

 

[cbg]

You have lots of rights. Whether any of them are being violated, however, is not clear. Rather, it's likely that you have recourse, but perhaps not exactly the ones you think.

The first thing to establish is whether you are correctly classified as an IC. Anyone can legally be considered an employee; not everyone can legally be considered an IC. Take a look at this list.

http://art.mt.gov/artists/IRS_20pt_Checklist_%20Independent_Contractor.pdf

It was written for the employer; you are "the worker" in the parlance of the checklist. But take a quick look and tell me if you think you are correctly classified. Then we'll go from there.

BTW, I work in the Benefits office of a large university; we operate it as a call center. We DO have a phone tree; they do not in any way, shape or form guarantee that we will not get any calls intended for someone else. We get plenty of calls intended for our retirement center; our third party administrator; campus services; HR; Payroll; and who knows what all else.

 

[Delvianna]

Thank you Justalayman,

The problem is, the contract doesn't say anywhere that we will be taking some calls that aren't paid. All it states is you get x amount per order. You don't know about this, till you actually work. Because of these unpaid calls, pay is WAY lower than minimum wage. I once averaged around 2.50/an hour. If it's busy, I'll average around 5.50/hour. National minimum wage is 7.25 I believe... Which is why this is SO deceptive... I'm trying to find something else because I cannot keep doing this... working for around 5 bucks an hour because of all these unpaid calls that I'm actually doing work for.

 

[cbg]

Did you read my link?

 

[justalayman]

Thank you Justalayman,

The problem is, the contract doesn't say anywhere that we will be taking some calls that aren't paid. All it states is you get x amount per order. You don't know about this, till you actually work. Because of these unpaid calls, pay is WAY lower than minimum wage. I once averaged around 2.50/an hour. If it's busy, I'll average around 5.50/hour. National minimum wage is 7.25 I believe... Which is why this is SO deceptive... I'm trying to find something else because I cannot keep doing this... working for around 5 bucks an hour because of all these unpaid calls that I'm actually doing work for.

So now it needs to be determined whether you can legally be considered an independent contractor. If not you could make a wage claim through the Dept of Labor. If you can legally be considered an IC, well, you can look for another job. Using just what you posted you must be paid $X for each order. Unless it says the only calls you will field are calls for food orders they can expect you to take all the calls you are.

 

[Delvianna]

Thank you cbg, some of them are confusing and im not sure I will do my best.
1.I think this is half and half.. i only take orders so i dont think they can suffer a loss if i dont work
2. yes, i buy my own stuff
3. no i dont work for more firms
4. services? I dont think so.. general public calls in, i take their order, im not sure if that constitutes as me offering a service. People want food, i take their order.
5.yes, they give us a script, its detailed and has to be done in the correct way, exactly how they want us to do it. When we can take breaks, how long our breaks are, as well.
6. they trained us, there was a training day on how and what we say to customers and how to use their system, as well as there are constant new training things that we're required to complete on a regular basis
7.no, if i dont work.. its not a big deal
8.yes
9. i cannot hire anyone, no assistants or anything, i work by myself
10. somewhat because of the constant training
11. i set my own work hours
12. during the time i set, i cannot do anything else.. not even get a glass of water unless its my break.
13. work is done at home
14. no, order is done specifically, one right after the other, what im supposed to say and when
15. i get weekly reports, theres percentages i have to meet, theres quality scores I get monthly on how well i follow the script
16. I get paid bi-weekly
17. no, theres no travel involved
18. no, I supply my own stuff
19. yes, they can fire me, write me up, put me on unpaid leave. Also all requests for vacation time have to be submitted and approved.
20. yes, i can quit at any time

 

[Delvianna]

Sorry cbg, it just took a few min to go through all the questions

 

[cbg]

No problem, I just wasn't sure if you'd seen it.

You say you don't work for more firms. COULD you if you wanted to?

 

[Delvianna]

depends on what it is, im restricted from working at places like KFC

 

[Delvianna]

Any answers for me?

 

[cbg]

Sorry, I didn't see your initial response.

I'm still trying to clarify your status. You can't work for a fast food chain. Could you, if you chose to, work for another food distributor?