Classification of Employee vs. Independent Contractor

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Classification of Employee vs. Independent Contractor

I was hired at a Nail and Hair Salon as a Spa Therapist providing Massage,
Facials, Skin Care, Waxing and Makeup. My previous salon had closed down where
I was an ’employee’. This new company hired me on 11/1/16 as an ‘independent
contractor’ at 60 Commission of my total services. The salon and I both book
my appointments, the salon collects full payments from the clients at a central
desk where the appointments are booked. The ‘pay period’ is Friday thru
Thursday. I receive a weekly paycheck for the commission earned without taxes
being taken out. Clients pay the salon at the the end of each service. I work
in a private room due to the nature of my work and I have provided all
equipment and supplies necessary to perform each service with an investment of
1200.

I feel I am being miss classified but cannot get the owners to understand as
this is how they’ve been ‘doing business for 20 yrs.’

I have read the rules from the IRS Dept. of Revenue and Dept. of Health. I have
provided this information to the business owners but they are being told by
their accountant that has ‘law experience’ that they are not doing anything
wrong.

Any information and guidance would be greatly appreciated.

Asked on January 15, 2017 under Employment Labor Law, Florida

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 4 years ago | Contributor

There is no hard and fast rule but if you provide your own equipment, if you have a role in booking your appointments; if the employer does not manage or direct *how* you do your job (e.g. they don't tell you how to give the massage, facials, etc.); if you have some discretion about the hours you work; and if you are paid not any guaranteed wage but only 60% of commissions, then they may well be right. In the situation you describe, there appear to be enough of the hallmarks of being an "independent contractor" that you may be one, since their degree of control over you appears light enough, and you have enough responsibility for your own profit/loss, that do not appear to necessarily be an employee.


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