Can an employer refuse to pay travel time to a independent contractor?

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Can an employer refuse to pay travel time to a independent contractor?

I have been an independent contractor for 3 years and am required to spend 70% of my time traveling to other locations. I have never been compensated for travel expenses (gas allowance) , but have always been paid for my time when traveling. Last week my employer said he will no longer pay me for the time I am traveling. He says it is written in my contract, which reads “the provider will be paid ___ per hour for a maximum of up to 500 hours including travel and expenses”. Should I be getting paid or not?

Asked on February 12, 2011 under Employment Labor Law, Florida

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

First, there is *no* legal rule about whether an independent contractor must be paid for his or her travel or not. That is purely a contractual matter--it's a function of what is agreed to between the two parties.

The language you quote from the contract is slightly ambiguous. It could be intepreted either as the client evidently does--that the sum of $X per hour is for "working" hours (i.e. on location) and includes all compensation you are due, including for travel and other expenses--or as you seem to interpret it--which is that you can be paid for up to 500 hours, including travel time.

If in the past, the client paid you for the travel time, that would be evidence, based on demonstrable practice, that the second interpretation is right and you should be paid. On the other hand, if they don't want to pay you, you'd have to sue to get the money (and note: even with some evidence of past practice on your side, a lawsuit is never a guaranteed win)--and then, unless you've been guaranteed work, they could simply stop using you.

You need to decide whether and how much to push this. You may be best off citing past practice and attempting to negotiate some compromise--maybe a certain amount of travel compensation or allowance, even if it's less than your hourly rate.


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