If I am a commission only hairstylist but I have set hours thatI must work each week, shouldn’tI be getting an hourly wage?

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If I am a commission only hairstylist but I have set hours thatI must work each week, shouldn’tI be getting an hourly wage?

My employer files me as an independent contractor. However I have a set schedule each week. How can I be both an independent and commission employee? What are my rights? And how should taxes be paid?

Asked on December 20, 2011 under Employment Labor Law, California

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

An independent contractor can be paid by commission only--many independent sales representatives, for example, are independent contractors paid by commission. There is no contradiction between being commissioned and being an independent contractor.

A commissioned contractor--or, for that matter, employee--can be required to work set hours.

The real question is whether you truly are an independent contractor, or whether you are actually an employee. For the full test of when one is a contactor (versus and employee), go the U.S. Department of Labor website. In brief, an independent contractor has a fair amount of "independence"--for example, he or she will do his or her own marketing, decide how to do his or her job, provide his or her own tools, obtain insurance as required, etc. Employees are not independent.

If you are actually an employee, then you must be paid at least minimum wage (though it's ok to be paid only by commission, so long as you work out to earning equal to or more than minimum wage); your employer should pay the employer portion of FICA for you; you should likely be covered under worker's comp and unemployment; and you may be entitled to benefits.


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