When is an independent contractor actually an employee?

UPDATED: Jul 19, 2011

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When is an independent contractor actually an employee?

I work in a salon and get paid on commission. My supplies are provided for me; my tools are my own. My check is taxed like an employee and not like a 1099 independent contractor. We are not offered any benefits and need to get “approved” time off per the management. We even have to clock-in and clock-out and are required to stay for an entire “shift” without getting paid. It seems to me that they are treating everyone like employees as far as the rules go, but when it comes to pay and benefits I feel like a independent contractor.

Asked on July 19, 2011 under Employment Labor Law, Michigan


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 11 years ago | Contributor

Generally speaking, when someone is an employee or an independent contractor will depend on the degree of control exerted over them by the employer, and the degree of independence they themselves have (if any). Typically, if you have to clock in and clock out and get your time off approved by the management, that degree of control would indicate that you are an employee, not a independent contractor. As an employee, you could possibly qualify for overtime and the employer would have to pay the employer share of FICA for you, pay to unemployment for you, etc. It would also have to offer you the same benefits it offers other employees--though note: employers do not need to have benefits (e.g. paid time off, health insurance) in the first place, if they don't want to. If there are employee benefits which other workers get and you feel are being wrongfully withheld from you, you should probably speak with an employement law attorney.

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