Misclassified contractor waiting time regular rate of pay?

[Not IC]

So I’m a missclassified contractor and I’m wondering about waiting time. I do projects for a company that takes a few days to finish. The first day I receive emails and I have to confirm a few days a head of a scheduled day which I show up and do a project. And then I’m required to bring the data home and store it for 6 months. I have received requests for data up to a year after finishing the project. So I’m having trouble defining the actual workday and my regular rate of pay. I’m wondering if holding the data for up to a year has an effect on hours worked or unpaid wages. I feel like I’m engaged to wait regarding the data. There is a lot of responsibility with the data. I had to sign a non-disclosure that opens myself up to lots of damages if the customers data gets out. Anyway under the flsa it says waiting time is compensable if you have been engaged to wait and you are not off duty unless you are completely relieved of all duties, told you can leave and told exactly what time you need to report back. Since I’m not relieved of all duties, not told I can leave and not told what time to report back to work until later how do I define my work day or regular pay any suggestions or help please?

 

[PayrollHRGuy]

Until you do something about being a misclassified contractor and are a W2 employee the FLSA means nothing.

 

[HRZ]

Agree, first get yourself properly classified as a employee...and hopefully NOT an exempt one .

IF you were an hourly employee there might be merit to time spent actually storing and retrieving date ....but unless you are required to sit by a fixed location computer awaiting a call...I personally don't see standby time as a point to raise.

 

[Not IC]

Until you do something about being a misclassified contractor and are a W2 employee the FLSA means nothing.

I understand and I’m for sure that I’m misclassified.

 

[Not IC]

Agree, first get yourself properly classified as a employee...and hopefully NOT an exempt one .

IF you were an hourly employee there might be merit to time spent actually storing and retrieving date ....but unless you are required to sit by a fixed location computer awaiting a call...I personally don't see standby time as a point to raise.

I’m referring to waiting time not being on call. I mean under the continuous workday rule doesn’t the workday start with the first principal activity and end with the last principal activity? If so isn’t requiring me to keep the data available for 6 months a principal activity?

 

[PayrollHRGuy]

Then take up your classification issues and any OT issues you think you have with the Department of Labor, state or federal. But just having the data at home and being called from time to time for that data is NOT waiting time.

 

[PayrollHRGuy]

I’m referring to waiting time not being on call. I mean under the continuous workday rule doesn’t the workday start with the first principal activity and end with the last principal activity? If so isn’t requiring me to keep the data available for 6 months a principal activity?

No it isn't.

 

[HRZ]

IF you were required to sit next to the computer and guard it at all times ...I might buy your view ...but that's NOT what you post.

 

[Not IC]

Ok guys got it. So another question would be since I get paid per project does that encompass everything regarding time worked.? Example I’m required to show up 30 minutes early for standby, I transport my equipment to the job site, I’m not given any rest or break meal, I have to wait 15 mins for them to check my work before I leave, I transport the data back home to load as they require, I then deliver the data to their main office a day or two later. Under the portal to portal act wouldn’t my workday begin when I do my first principal activities at home? How would I define the end of my workday?

 

[HRZ]

File a wage claim based on being an hourly worker .....You probably have a solid point about time you are required to show up thru time you are allowed to leave ...you might have a point about your day is not done until the data gets loaded...and any data recovery time .

Mere commute to /from work does not count ..unless there is some specific company duty nvolved....I think being data courier is a far point to win for time but hey, it's it's an assigned duty..go for it .

 

[Not IC]

File a wage claim based on being an hourly worker .....You probably have a solid point about time you are required to show up thru time you are allowed to leave ...you might have a point about your day is not done until the data gets loaded...and any data recovery time .

Mere commute to /from work does not count ..unless there is some specific company duty nvolved....I think being data courier is a far point to win for time but hey, it's it's an assigned duty..go for it .

Hi I appreciate your guys hep so far. For the drive to work I do principle activities at home and then transport equipment to the job site that is integral to the principal activity. As for the data thing it is integral because there are three parties involved. Me, the company I work for and the company they work for. The company I work for is the last one to recieve the data from me and then I’m required to hold it for 6 months for both.

 

[Not IC]

File a wage claim based on being an hourly worker .....You probably have a solid point about time you are required to show up thru time you are allowed to leave ...you might have a point about your day is not done until the data gets loaded...and any data recovery time .

Mere commute to /from work does not count ..unless there is some specific company duty nvolved....I think being data courier is a far point to win for time but hey, it's it's an assigned duty..go for it .

So if I am right up to delivering the data how would the time worked be calculated? I receive emails days before and reply, I then have to retrieve relevant data for the project days before. Then I have to do all the stuff I mentioned. I understand my workday from morning until I get home and load the data. I’m confused about the very beginning (checking emails and retrieving data) and the end of the workday. Would the early and later activities extend the workday completely or just add the actual time worked? I mean they’re principal activities and I don’t know exactly what time I have to standby until the day before the scheduled project and I don’t know what time I have to return to work until the day before the next scheduled project. I’m pretty sure about the standby and the no rest or meal breaks. I think maybe from the principal at home to arriving at work might be compensable.

 

[HRZ]

If you are required to sit next to employers old mainframe to handle data I lean towards sitting time is required to be compensated ...if on the otherhand you have a smart portable device and have few limits on what you do...then I lean towards only the time actually engaged in employers work is required to be compensated and counted

Be careful , if you are exempt they can work you 24/7 just on base salary .

 

[justalayman]

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.

 

[HRZ]

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 )!