Misclassified contractor waiting time regular rate of pay?

[Not IC]

Unless and until there is a determination on your classification, you are an IC. Your work rules are defined by your contract. If you have included travel time in your contract, then you should be paid for it. If you haven’t, then shame on you.

Allowing the data to set on your computer is not compensable time whether you are an IC or an employee unless as an IC you have contracted some fee for storage. As an employee unless you were activity working (working can include travel time depending on the circumstances) or what is called engaged to wait, your time is notcompensable.

If you are waiting to be engaged (applies to employee situations), there is no requirement to compensate you.


And allowing the data to set on your storage is not engaged to wait. It requires no constant tending. It merely sits there while you go out to eat or go on vacation. You are not even waiting to be engaged really.

Your probably right about the time not being compensable. However I’m engaged to wait. I read an example straight from dol website about a truck driver being on duty until he is completely relieved of all duties which in his case was the duty of taking care of the truck even if he used the time for his own purposes. I know literally I’m not working but I’m just referring to the fact I’m engaged to wait and by definition I’m not off duty.

 

[eerelations]

I know literally I’m not working but I’m just referring to the fact I’m engaged to wait and by definition I’m not off duty.

It's the DOL's definition that counts, not yours.

 

[HRZ]

THere are a pile of complex regs inc but not limited to DOT as to drivers times doing driving and waiting and even working for others....totally NOT relevant to your issues as posted.

THe issue as to your wait may focus on your degrees of freedom ...if you are free to go swimming and respond in 45 minutes I doubt it qualifies as paid waiting time ...if you are required to maintain an open connection on a fixed site
and respond in 5 minutes and cannot even walk across street for a hamburger ...well that may be different.

 

[Not IC]

I disagree ..the default status is that of employee ....and neither side can write q contract that holds up to violate public policy ...to spell out when to,show up when to leave when not to eat lunch , how to manage the work product/data etc....it may be a close call...check the info IRS has re S-8 forms ...the more the employer controls when, what, how, where the less likely you are to be a true I-c

You didn't mention your state.....might help...some states have even tougher laws about who is an employee.

( I've paid IC s for travel and wait times essentially portal to portal but that was clearly in the written terms of engagement and they were far from under my control as to who did what when to get the job done )!

I disagree ..the default status is that of employee ....and neither side can write q contract that holds up to violate public policy ...to spell out when to,show up when to leave when not to eat lunch , how to manage the work product/data etc....it may be a close call...check the info IRS has re S-8 forms ...the more the employer controls when, what, how, where the less likely you are to be a true I-c

You didn't mention your state.....might help...some states have even tougher laws about who is an employee.

( I've paid IC s for travel and wait times essentially portal to portal but that was clearly in the written terms of engagement and they were far from under my control as to who did what when to get the job done )!

Your right about the contract not being able to violate public policy. The funny thing is my contract only says the prices for the products and the immediate duties. Nothing about the other duties like answering emails, storing data.... it lists the two main duties and says only. however I was previously an employee before becoming a contractor. So I guess a court would consider that when looking at the contract. I think I’m nonexempt I film weddings and they pay per project. The only exemption I was worried about was creative but we are basically like reporters. The wedding company sets up the weddings and we document the weddings which are almost identical.

 

[justalayman]

I disagree ..the default status is that of employee ....and neither side can write q contract that holds up to violate public policy ...to spell out when to,show up when to leave when not to eat lunch , how to manage the work product/data etc....it may be a close call...check the info IRS has re S-8 forms ...the more the employer controls when, what, how, where the less likely you are to be a true I-c

You didn't mention your state.....might help...some states have even tougher laws about who is an employee.

( I've paid IC s for travel and wait times essentially portal to portal but that was clearly in the written terms of engagement and they were far from under my control as to who did what when to get the job done )!

Default? What are you talking About? Until somebody with the authority to call him an employee does so, the employer is going to consider him an ic. He doesn’t have automatic rights here.just by saying he believes he is missclassified. It has to be established he is an employee by somebody with the authority to make that call. Until op does that, he is an ic whether it be lawful or not.



A client can establish work hours by virtue of being open only st certain times or not allowing an ic into the establishment without permission. A contract can include the person be available without any unattended time. It is up to the ic to figure out how to man that work. If he has to hire fill in help or refrain from taking s bresk, that’s what he does.

I didn’t see anything about how to manage the work product. The client can demand a specific result of the work effort though


And I see you suggested filing an ss8. Well gee, I guess my statement about not having any enforceable really rights until somebody in authority makes the call was heard.


Regardless his question about having control of the data somehow can be seen as engaged to wait is silly and that seems to be his biggest concern.

 

[Not IC]

It's the DOL's definition that counts, not yours.

I know what your saying and it is the dol definitions I looked at. If you are not completely relieved of all duties and not told in advance definitely that you can leave and definitely what time you have to return you are not off duty. They even have a example of a truck driver who is off but the truck is still in his care as still being working. Also I read a Supreme Court decisions stating the work can require little to no mental or physical exertion. I know I can use the time how I want, but since they ask me to hold the data for 6 months I feel that I’m engaged to wait. They are engaging me to wait and make available the data for 6 months. I also realize i use the time for what I choose and that it mostly benefits me...I’m probably wrong

 

[justalayman]

Your probably right about the time not being compensable. However I’m engaged to wait. I read an example straight from dol website about a truck driver being on duty until he is completely relieved of all duties which in his case was the duty of taking care of the truck even if he used the time for his own purposes. I know literally I’m not working but I’m just referring to the fact I’m engaged to wait and by definition I’m not off duty.

Engaged to wait means the obligation is so limiting you cannot carry on a normal life.


Do you go places on Vacation? Are you always within some means of immediate contact and call to duty?

If you aren’t available to be called to duty on a moments notice, you aren’t engaged to wait.

 

[Not IC]

Default? What are you talking About? Until somebody with the authority to call him an employee does so, the employer is going to consider him an ic. He doesn’t have automatic rights here.just by saying he believes he is missclassified. It has to be established he is an employee by somebody with the authority to make that call. Until op does that, he is an ic whether it be lawful or not.



A client can establish work hours by virtue of being open only st certain times or not allowing an ic into the establishment without permission. A contract can include the person be available without any unattended time. It is up to the ic to figure out how to man that work. If he has to hire fill in help or refrain from taking s bresk, that’s what he does.

I didn’t see anything about how to manage the work product. The client can demand a specific result of the work effort though


And I see you suggested filing an ss8. Well gee, I guess my statement about not having any enforceable really rights until somebody in authority makes the call was heard.


Regardless his question about having control of the data somehow can be seen as engaged to wait is silly and that seems to be his biggest concern.

My biggest concern is weighing both options of either pursing a lawsuit or not pursuing one. Which includes looking at potential outcomes and calculating or at least estimating damages. I’m actually trying to clarify the early part of my workday and the later part or ending. I’m not a lawyer so maybe lower your expectations. As of now this job is my main income so yes I’m concerned. I feel confident I’m misclassified.

 

[Not IC]

Engaged to wait means the obligation is so limiting you cannot carry on a normal life.


Do you go places on Vacation? Are you always within some means of immediate contact and call to duty?

If you aren’t available to be called to duty on a moments notice, you aren’t engaged to wait.

Understood so what would the end of my work day be? Loading the data into the drives? What about when they require me to provide data again after I already provided it. They recently asked me for a years worth of data because their drives crashed.

 

[justalayman]

Did you ever provide your state?

If an employee, about half of the states have no law requiring a meal break.

If an ic, as I stated, if you are manning some action station , the client can requiremit be manned constantly which would mean you would have to figure out how to do that. It wouldn’t be the clients obligaton to aid you. ,


I
What are you even considering mounting a law suit for? Most states have a department of labor that will deal with wage issues if your missclassified

 

[justalayman]

Understood so what would the end of my work day be? Loading the data into the drives? What about when they require me to provide data again after I already provided it. They recently asked me for a years worth of data because their drives crashed.

I don’t know what your contract provides for. If an hourly compensation then your work day ends when you stop working. If asked to retrieve files you would be due the hourly compemsation while working.

If your contract provides $Xxxx.xx for your services for one year, then you would,be due nothing beyond that.

 

[Not IC]

Did you ever provide your state?

If an employee, about half of the states have no law requiring a meal break.

If an ic, as I stated, if you are manning some action city, the client can requiremit be manned constantly which would mean you would have to figure out how to do that. It wouldn’t be the clients obligaton to aid you. ,


I
What are you even considering mounting a law suit for? Most states have a department of labor that will deal with wage issues if your missclassified

We mirror federal tax law. Our local labor law includes the flsa. We do get rest and meal breaks. I’m not sure what your saying in the middle of your post. (Reread it and I got it) I’m considering using a lawyer because it’s a better option here, but $ might change my mind.

 

[Not IC]

I don’t know what your contract provides for. If an hourly compensation then your work day ends when you stop working. If asked to retrieve files you would be due the hourly compemsation while working.

If your contract provides $Xxxx.xx for your services for one year, then you would,be due nothing beyond that.

My contract is a price list for the different packages I do. It lists only some of my duties not all, but I was previously an employee before I became a vendor. It literally says duties: then only lists two principal duties. I get payed per project they give me. There are different options that add time worked that I get paid more for. It states I use my own equipment and that I’m being hired as a freelance producer that will be paid only as required.

 

[eerelations]

...I’m probably wrong

Agree, you are wrong.

 

[Not IC]

Agree, you are wrong.

Thanks for your help