Required to Arrive at Work Early

[SChinFChin]

if you are required to be at work before your start time, they must pay you. Once they express such control over you, you are on their time.

I've been in project management, and from time to time, I made deals with subcontractors where they don't get paid for the time they put in.

As an example, I ran an SAP project, and experienced programmers are paid from $100 to $150/hour, and these guys had 5 to 10 years experience under their belts. Once, I had this guy who said he had 3 years experience, and I recall we were paying him a lower rate, around $60/hour, and with the standard 9-5, Mon-Fri schedule, he's barely able to get half of his assignments done.

So, what to do??

And I further checked into the matter, and it appears his qualifications was a bit exagerrated. He already realized that he cannot keep up with his assignment, so the option of my management is to see if I can get a replacement, which for that specified skill set, was not easy to do.

One option, to conform to labor laws exactly, is to "reduce" his rate to $40/hour or less, which is more in line with his skill level. Then we increase his hours. Problem?? If I proposed this, and he agreed to it, then we are telling management we are using an unqualified progammer, and if serious mistakes are found, then I would be blamed. WIth over $40 million budgeted for the project, why are we using $40/hour people.

My analysis is he is good, but slow.

The other option was he comes in Saturdays at his own time to catch up. He'll even get paid more this way, compared to paying him $40/hour, and paying him for Saturday. This way, I can continue paying him his regular rate, for the other days, and not have to explain why I have to pay an unqualified person.

So we decided to go with the option of him working free on Saturdays. My other option was to replace him with a qualified programmer.

Now, as to the OP, he says he is the only one told to put in prep time. At the Senior Center where I am, I don't tell subcontractors how to do their job running their dance and yoga classes. But I noticed some instructors come in off the streets prepared, and able to get started immediately. Others come in, and they need time to get ready, some don't change into their costumes till they get there.

So, if someone, who is slow, needs 10 minutes to get ready, and I have to pay him for it, as compared to someone coming in prepared, I am being unfair to those who are prepared.

So I either tell the guy he has to put in prep time, free, or we have to get someone who works better where we don't have to lay out for prep time, that is, if the subcontractor insists that is the only legal way. If the only legal way is for us to find someone else, we would go look for someone else.

Bottomline, I find those a bit slower can even out the playing field, putting some free time, to be competitve with their colleagues who are more efficient and qualified, and I see nothing wrong with less efficient people given an equal chance to compete. Unfortuantely, from time to time, I find some people who are slow, doesn't realize it, wants to get paid for extra time, and finding themselves replaced.

[terryk]

thank you for your time in responding to my query.

i am shortly, friday going in to sign my new contract with this client. to make things perfectly clear all 50 of us artist models will be required to show up at class time, ready to work, 10 minutes before class starts. needless to say about 20 percent of the instructors are not even present yet. there are 2 or three instructors out of 50 or so who are present, fully prepared and like to start us working at precisely 830 am. personally i LIKE to arrive early, it enables me to collect props, set up, and get a comfortable chair to sit in on my breaks. however if i am required to arrive 10 minutes early then i have to try to get there 15 minutes early to be sure i am on time.

also for every 5 days we are booked we are required to be 'on call' for one day. they have stated we are free to work for other clients but generally i work every day either for this client or others, how can i
be 'on call' if i am working some place else?

anyway do you happen to know any legal sources that specifically present the concept that independant contractors cannot be required to be on site prior to start time without pay??

another wierd thing is that i have worked for this client 23 years and now they have assigned a new company to book and schedule our work. this new company, with new contracts for us requires us to fill out an I-9 form, an employment eligibility form which requires a current passport, birthcertificate and or social security card. i have had passports for 10 years but my last one expired 1 year ago. to get a social security card. to get a soc card you need a passport or birthcertificate. now i believe somewhere i can find my birthcertificate and maybe even my original soc sec card. and within five days. or they will postpone our booking. now i am quite sure i will be fine but again the seeming illegality of the process irks me and i would like to find out some hard legal data about all this.

again thank you for the time you are putting into this

[jk]

t

erryk;448418]

anyway do you happen to know any legal sources that specifically present the concept that independant contractors cannot be required to be on site prior to start time without pay??

My mistake and my apologies for that. I read your situation as you not being an IC.

As an IC, you are bound by your contract. If you are paid hourly in your contract, you would be due pay for all time required to be at work. Along that same line, if your contract states you are to be there at 8, then contractually, they have no right to demand you be there any sooner. Of course, you could be expected to be ready to actually start work at 8. Depending on how your contract is written, that may mean you do have to be there prior to 8 to prep. Personally, I believe it would be a poor contract that required prep time to be on your time but I have seen worse.

the FLSA does not apply to your situation because you are not an employee but an independent contractor.

so, bottom line; whatever the contract demands is what you are expected to follow. It's not that they can't tell you to be there early on your own time. it is that your contract does not require it and as such, you would not be in breach of your contract if you were not there early and on your own time.

.

this new company, with new contracts for us requires us to fill out an I-9 form, an employment eligibility form .

maybe patty or cbg will speak to this but I was under the impression that an I9 is required only for an employee relationship. Being an IC, that would not apply to you.

[cbg]

I-9's are only required by law for employees.

I am unaware of any law that would prohibit a client company from requiring one for IC's. The law does not require it, but does not prohibit it either.

[KeyWestDan]

You've been working for the same "client" for 23 years and you are not an employee? That really sounds fishy. I hope you are paid plenty.

That means for 23 years you have had nothing paid into social security and no employer matching payments. That also means you can never get UC. Is someone paying for Workmans Comp?

Hope you are putting lots of money away.

[SChinFChin]

anyway do you happen to know any legal sources that specifically present the concept that independant contractors cannot be required to be on site prior to start time without pay??

As far as I know, for IC's, it's what you and your client agrees to.

Now, as I mentioned, we hire performers and we pay them hourly, but expect them to start their performance at a stated time, so if a yoga class is advertised to start at 1:00PM, we expect the instructor to start at 1:00PM.

We have contracts with our instructors and performers, and it only mentions the hourly rate, and it is understood that instructors and performers are ready to start at the advertised time. These people had always arrived at least 10 to 15 minutes earlier, but usually 20 to 30 minutes to get ready, and at no time had anyone ever asked to be paid for prep time. In fact, if they did, we would have told them that we can no longer hire them.

In your case, they expect you to START your session at 8:30AM, (even though instructors may not be there), not to run into the building at 8:30AM, and have everyone wait while you're getting ready.

I mentioned earlier one instructor of ours had always started his sessions 15 to 30 minutes late, as he takes a bit of prep time. While we don't specify prep time, but if we follow your theory, and if we tell the man who's always late, "you should get here 10 minutes early to start on time", then right there PRESTO, I have to pay him prep time!! Somehow, something doesn't sound right with this. We don't do this for anyone else and we don't plan to start.

As to the paperwork, I worked at a company who hired IBM to run it's computer centers, and then existing employees had to submit paperwork all over again. My wife just got hired as an IC, and the paperwork even includes asking for the "marriage certificate", and being married over 30 years, we never had any occasion to go look for it. In fact, I thought it was quite odd, had no idea where to look when she first mentioned it.

[terryk]

The Twenty Common Law Factors
http://www.cehandbook.com/cehandbook.../ceh_main.html

Under the common law, a worker is an employee if the hiring firm (that is, the person or persons for whom services are performed) has the right to control and direct the way they work, not only with regard to the final result, but also with regard to the details of when, where, and how the work is done. According to the IRS, it is not necessary that the employer actually direct or control the manner in which the services are performed; it is sufficient if the employer has the right to do so.
1 Instructions.
A worker who is required to comply with instructions about when, where, and how work is to be done is ordinarily an employee.
Contractors are not required to follow instructions to accomplish a job.

2 Training.
Training a worker indicates that the hiring firm wants the work done in a particular way.

3 Integration.
Integration of the worker's services into the business operations generally shows that the worker is subject to direction and control. When the success or continuation of a business depends upon the performance of particular workers, those workers necessarily must be subject to a certain amount of control by the hiring firm.
Contractors should not perform work that determines the success or continuation of the hiring firm.
Contractors typically do not receive training by the hiring firm.

4 Services Rendered Personally.
If the services must be rendered personally by the worker it is presumed that the hiring firm wants the work done in a particular way.
Contractors usually have the right to hire others to do the actual work.
5 Hiring, Supervising, and Paying Assistants.

If the hiring firm hires, supervises, and pays assistants for a worker, that factor generally shows control over the worker.
Contractors must have the authority to control their own assistants.

6 Continuing Relationship.
A continuing relationship between the worker and the hiring firm indicates that an employer-employee relationship exists.
Contractors usually work for the hiring firm at irregular intervals, on call, or whenever work is available.

7 Set Hours of Work.
The establishment of set hours of work by the hiring firm is a factor indicating control over the worker.
Contractors set their own hours of work.

8 Full Time Required.
If the worker must devote substantially full time to the business of the hiring firm, then the hiring firm controls the worker, and restricts the worker from doing other gainful work.
Contractors should not be restricted from seeking and performing other gainful work.

9 Doing Work on Employer's Premises.
If the work is performed on the premises of the hiring firm, that factor suggests control over the worker, especially if the work could be done elsewhere.
Contractors control where they work. If contractors perform work on the premises of the hiring firm, the firm should not direct or supervise their activities.

10 Order or Sequence Set.
If the hiring firm sets, or reserves the right to set, the order or sequence in which work is to be performed, that factor shows control over the worker.
Contractors determine the order and sequence of their work.

11 Oral or Written Reports.
A requirement that the worker submit regular or written reports to the hiring firm indicates a degree of control.
Contractors are hired to produce a final result, and therefore should not be required to submit interim reports.

12 Payment by Hour, Week, Month.
Payment by the hour, week, or month generally points to an employer-employee relationship.
Payment made by the job or on a straight commission generally indicates that the worker is an independent contractor. Contractors may accept periodic payments based on a percentage of work completed, or some other fixed schedule determined before the job begins.

13 Payment of Business and/or Traveling Expenses.
If the hiring firm ordinarily pays the worker's business and/or traveling expenses, the worker is ordinarily an employee. An employer, to be able to control expenses, generally retains the right to regulate and direct the worker's business activities.
Contractors pay their own incidental expenses.

14 Furnishing of Tools and Materials.
The fact that the hiring firm furnishes significant tools, materials, and other equipment tends to show the existence of an employer-employee relationship.
Usually contractors furnish their own tools, materials, and other equipment. If the hiring firm provides such items, they should be leased to the contractor at fair market rate.

15 Significant Investment.
Lack of investment in separate facilities, such as maintenance or rental of one's own office, indicates dependence on the hiring firm, and accordingly, the existence of an employer-employee relationship.
Contractors should be able to do their work without using the hiring firm's facilities. The contractor's investment in their trade must be real, essential and adequate.

16 Realization of Profit or Loss.
Employees do not realize entrepreneurial profit, and are not at risk of loss, as a result of their work for the hiring firm.
Contractors should be able to make a profit or suffer a loss as a result of their work for the hiring firm.

17 Working for More Than One Firm at a Time.
The hiring firm may restrict its employees from working for another firm, such as a competitor, as a condition of employment.
Contractors are not restricted from working for more than one firm at a time.

18 Making Service Available to General Public.
Employees work primarily for the hiring firm.
Contractors make their services available to the general public on a regular and consistent basis.

19 Right to Discharge.
An employer exercises control through the threat of dismissal, which causes the worker to obey the employer's instructions.
An independent contractor, on the other hand, cannot be fired so long as the independent contractor produces a result that meets the contract specifications.

20 Right to Terminate.
Employees have the right to terminate their relationship with the hiring firm at any time without incurring liability.
Contractors are responsible for the satisfactory completion of their contractual obligation, and may be subject to a penalty or legal action if they fail to complete the agreed upon work.

The above list is adapted from IRS Revenue Ruling 87-41 Listing the 20 Common Law Factors -- Complete Text (1987-1 CB 296). You should consult a legal or tax advisor for advice concerning specific questions and situations. An excellent and informative summary of legal issues related to the hiring of independent contractors may be found in Independent Contractors: A Manager's Guide and Audit Reference, published by the California Chamber of Commerce, P.O. Box 1736, Sacramento, CA 95812-1736, (916) 444-6670. Another excellent resource is Hiring Independent Contractors: The Employer's Legal Guide (1997) by Stephen Fishman, published by Nolo Press. An in-depth and comprehensive discussion of employee vs. independent contractor legal issues is available on-line at Fenwick & West: Publications.
In 1996 the IRS issued a new training manual for its auditors that clarifies somewhat the distinction between employee and independent contractor. The manual advocates a less adversarial approach to classifying workers, and acknowledges that hiring an independent contractor instead of an employee "can be a valid and appropriate business choice". Guidelines in the IRS training manual are more permissive than the original twenty common law factors. The IRS training manual would seem to permit independent contractors to be paid by the hour, participate voluntarily in client provided training programs, work for a single client over a long period of time, work on the client's premises, and accept suggestions from the client about how work is to be done.
No single factor or mix of factors is necessarily sufficient to qualify an independent contractor as an employee. However, since any one factor alone can result in a contractor being reclassified as an employee, hiring firms are usually advised to demonstrate lack of control for all twenty common law factors. The severe consequences of "losing" in an IRS or EDD audit, coupled with a highly unpredictable appeals process, makes it imperative that all parties play it extremely safe.
The twenty common law factors, even when modified by guidelines in the new IRS training manual, place severe limitations on how clients interact with their contract workers. Most companies deal with this issue by disconnecting as much as possible from their contractors' work. The result for contractors is freedom and greatly reduced levels of stress. It is this freedom (as well as the money) that is so attractive to contract workers.


according to items 1,2,3,4,6,7,9,10,12,14,15,19, and 20 i qualify as an employee but my contract states that i am legally employed as an independant contractor. this does not seem legal

also of the forms i am required to sign is one listed as Artist Model Guidelines. and then at the end of the form it says I have read and understand the above Guidelines. I understand that failure to comply by these guidelines can result in termination of my contract.

the final item goes like this,
6. C.... I.....'s (name of firm) Contract: then lists the name of person and contact numbers

so, are these guidelines my contract? there is no other form in this regard.

there is also a form that is entitled artist model independent contractor agreement. which says

you are legally and practically in business for yourself and as such you are neither an employee of the agency nor of the client. you are an idependent contractor.

the last paragraph says, IN BETWEEN JOBS, YOU ARE NOT ENTITLED TO UNEMPLOYMENT INSURANCE FROM C...... I......'S OR THE ........... UNIVERSITY'S ACCOUNTS. C..... I........'S OR THE UNIVERSITY IS NOT AND WILL NEVER BE YOUR EMPLOYER.

Over the past 23 years i have worked for the university consistantly almost every day except for breaks between semesters, except for one summer when i was out of the country. during this time our pay vouchers have sometimes included a statement that i am an independant contractor. of course i signed these as i wanted to work. the last several semesters the vouchers have not included this statement.

this semester is the first time they have hired an independant agency to do our booking and thus our new 'contracts'.

[PattyPA]

So, if you feel you were misclassified (you didn't have to cite all that, we know what the requirements are and where to find them), report the company.

Either way, though, as an instructor, you would meet the criteria for exempt status under the Professional classification anyway, which would mean you would work whatever hours are necessary to get the job done for the same salary amount.

[terryk]

i am not an instructor , i am an artist model. but thanks for the reply

[PattyPA]

Oh, OK, then, I didn't catch that earlier.