What can be done of my girlfirend recently got a sales agent job as an independent contractor but I don’t think it actually qualifies as a contracting job?
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What can be done of my girlfirend recently got a sales agent job as an independent contractor but I don’t think it actually qualifies as a contracting job?
I’d love an opinion from an actual lawyer. Her hours are set they’re expected to work 9 am – 9 pm and occasionally volunteer to staff the front desk at 730 am. They’re given and required to memorize a script before being allowed to make their own sales. They’re given training. They work so many hours that it’s not realistic for them to be offering services to multiple companies. There’s no clear “end point” for the job. In the mornings, they’re expected to work at the AIL office phone calls, recruiting, etc.. They do have to pay for their license, and they’re not reimbursed for gas o
Asked on September 9, 2015 under Employment Labor Law, Utah
Answers:
SJZ, Member, New York Bar / FreeAdvice Contributing Attorney
Answered 8 years ago | Contributor
d on what you write, you appear to be correct she looks to be an employee, not an independent contractor. The key or most important determinant of whether someone is an employee is the degree of control exercised over them. If someone must keep regular hours, set by her employer has to work only at at the locations determined by the employer is told exactly how to do their job the script and are required to fill-in or pitch-in in many ways, instead of just doing the one thing they were hired to do, then they are almost certainly an employee, not an independent contractor. If you want more detail, you can find very similiar, but not quite identical, tests for when one is an employee vs. an independent contractor on the IRS and federal Department of Labor websites.
If someone is an employee, the employer must withhold salary for taxes and the employer, not the person, pays the employer portion of social security, etc.--i.e. no "double taxation" the person must be paid for all hours worked if an hourly employee, and must be paid overtime when working more than 40 hours in a week if not exempt and the job you describe is mst likely not exempt and would eligible for the benefits given employees e.g. health insurance, vacation or sick days, etc..
d on what you write, you would be worthwhile for your girlfriend to contact the state and/or federal Department of Labor and discuss the situation with them or alternately, to consult with an employment law attorney in detail.
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