Does the owner have legal grounds to treat me as an employee or a self contractor?

UPDATED: Oct 1, 2022

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Does the owner have legal grounds to treat me as an employee or a self contractor?

I work in a spa as a self contractor and
the owner thinks that she can make me,
and others, do work during down time and
expect us to wait for clients to be
booked without getting paid. We don’t
rent the rooms and we don’t provide our
own materials to work with which means
she should treat us like employees
instead of misclassifying us as such.

Asked on January 7, 2019 under Employment Labor Law, Delaware


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 3 years ago | Contributor

There are two different issues here:
1) Can a business require its independent contractors to do non-compensible work? Yes, unless there is a contract delineating what the contractor must do and must be paid for. Without a contract, the business can ask the contractor to do chores like you describe--and the contractor has to decide whether it is worth it to them to do those chores or else give up working with/for this business.
2) Are you actually an independent contractor or should you properly be classified as--and treated and paid as--an employee? If the business tells you when and where you have to work, directs or manages you in how to work, provides the space and materials for you, etc., you are very likely an employee, not an independent contractor, no matter what the employer wants to call you; the law looks to the realities of the labor relationship, not how the parties choose to describe it. This employer seems to be having the type and degree of control over you that an employer has ovefr employees: that means you need to be paid for all hours worked; paid overtime when you work more than 40 hours in a week; and have the employer pay the employer portion of social securit, medicare, etc. taxes for you. You may wish to file a complaint with your state department of labor.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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