In a commission-only sales position, can an employer require employees to clock in-and-out and work set hours with no hourly compensation?

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In a commission-only sales position, can an employer require employees to clock in-and-out and work set hours with no hourly compensation?

I work a commission only sales position, no hourly pay. Can the employer require employees to submit to a set working schedule and clock in-and-out if each employee is considered an independent contractor? Also, can the employer change change an employee’s job description and status sporadically without notice or explanation to the employee (i.e. move from one position to another several times within a month and change employment status from independent contractor to employee then back to independent contractor without notice)?

Asked on September 9, 2011 under Employment Labor Law, New Jersey

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

1) Can an employer require an employee, even one paid by commission, to work a set schedule? Yes--employers can set terms and conditions of employment, including hours worked.

2) Can an employer change an employee's duties, job description, etc. at will, without prior notice? Yes--again employers determine who works in what job, doing what.

However...

3) If someone is truly an independent contractor, the employer cannot require the contractor to work a set schedule--that degree of control is inconsistent with being an independent contractor.

4) If the person is an independent contractor, then the employer can't change duties, position, title, etc. at will--those are determined by the contract (including oral or verbal agreement) between employer and contractor.

In short: an employer can treat someone like an independent contractor, or it can treat them like an employee and exercise tight and constant control--but it can't do both. Whether someone is an independent contractor or employee depends on the nature of the relationship, and if a "contractor" is treated like an employoee, subject to tight employer control, the contractor is really an employee regardless of what he or she is called--and that means should receive benefits, have withholding, etc.


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