Hello...I live and work in Florida. I currently work for a temp service. Nothing has ever been said about overtime at all. I did work a little over time only because I was on a call that I could not just end. I went over by 1/2 an hour. My manager at the company where I am assigned to, approved my time card. When my time card went to my employer (the temp service) they denied my time card because there was overtime on there.

Another issue I have is if we are late, even 1 minute, they dock our pay 15 minutes.

Is it legal for them to take away the over time???

Is it legal for them to dock 15 minutes for being 1 minute late??

Is it legal for them to take away the over time???

Is it legal for them to dock 15 minutes for being 1 minute late??

The answer is "No" to both questions.

The staffing company should be paying you for the overtime. Whether or not they can bill the client for the overtime is something they need to work out with the client (under the circumstances, the client SHOULD pay the bill for the OT).

Thank you for the reply.

I do have another question.....I realize if I am supposed to be there at 8, then I am usually there at 8....if I come in at 830, I put 830 on my time card. Is there any time that is legal for them to dock me time for being late?? I usually go by the rule of thumb that if I get into work before 807, then I put 800 on my time card, if I get to work between 808 and 815, I put 815 on my time card. This is not very often as I am usually ontime for work. I was just taken back when I was a few minutes late this time and they told me I had to resubmit my time card because I had to put down 815.

You should record the actual time you arrive/leave. The employer does not have to round; they can pay you to the minute if they so choose.

Hello...I live and work in Florida. I currently work for a temp service. Nothing has ever been said about overtime at all. I did work a little over time only because I was on a call that I could not just end. I went over by 1/2 an hour. My manager at the company where I am assigned to, approved my time card. When my time card went to my employer (the temp service) they denied my time card because there was overtime on there.

Another issue I have is if we are late, even 1 minute, they dock our pay 15 minutes.

Is it legal for them to take away the over time???

Is it legal for them to dock 15 minutes for being 1 minute late??

The answer to both of these questions is MAYBE. Not no. I worked for a temp service when I moved down here and they told me straight up that they didn't pay OT unless approved by the employee AND the temp service before hand. There was one instance that this did happen and I was approved for overtime. Check your contract that you signed and see if there is a provision for no overtime. Your temp service probably denied your time card before they did not get authorization from the employee to have OT on your time card. Simple as that.

As for docking 15mins for being late, that does not sound legal. You should be getting paid for every minute you are there. Again, check the contract you signed. There may be a provision for this as well.

No offense, but none of this matters. The government is VERY clear that employees cannot agree to not be paid overtime. The employer can terminate or otherwise legally discipline employees for working unapproved OT but employers cannot refuse to pay unapproved OT no matter what agreement the employee signed.

From the federal DOL website:

http://www.dol.gov/esa/regs/compliance/whd/whdfs23.htm

Overtime Pay May Not Be Waived: The overtime requirement may not be waived by agreement between the employer and employees. An agreement that only 8 hours a day or only 40 hours a week will be counted as working time also fails the test of FLSA compliance. An announcement by the employer that no overtime work will be permitted, or that overtime work will not be paid for unless authorized in advance, also will not impair the employee's right to compensation for compensable overtime hours that are worked.

No offense back to you but YES it does matter. You are classified as a contract employee in Florida when you are a temp. Depending on this persons profession, they would be considered an independent contractor and thus the FLSA does not apply to them because they are not considered an "employee".

No offense back to you but YES it does matter. You are classified as a contract employee in Florida when you are a temp. Depending on this persons profession, they would be considered an independent contractor and thus the FLSA does not apply to them because they are not considered an "employee".

OK, no offense but NO, an employee is an employee, whether called "contract" or "temp" or Gary. An employee has taxes withheld. Workers assigned to a client through a temp staffing agency are employees of the staffing agency. The term "contract employee" is a misnomer at best and has nothing to do with this issue.

I'm not going to argue with you. Read the below, you will see that being labeled a contractor has nothing to do with taxes.

http://www.dol.gov/esa/regs/compliance/whd/whdfs13.htm

The U.S. Supreme Court has on a number of occasions indicated that there is no single rule or test for determining whether an individual is an independent contractor or an employee for purposes of the FLSA. The Court has held that it is the total activity or situation which controls. Among the factors which the Court has considered significant are:

1) The extent to which the services rendered are an integral part of the principal's business.

2) The permanency of the relationship.

3) The amount of the alleged contractor's investment in facilities and equipment.

4) The nature and degree of control by the principal.

5) The alleged contractor's opportunities for profit and loss.

6) The amount of initiative, judgment, or foresight in open market competition with others required for the success of the claimed independent contractor.

7) The degree of independent business organization and operation.

There are certain factors which are immaterial in determining whether there is an employment relationship. Such facts as the place where work is performed, the absence of a formal employment agreement, or whether an alleged independent contractor is licensed by State/local government are not considered to have a bearing on determinations as to whether there is an employment relationship. Additionally, the Supreme Court has held that the time or mode of pay does not control the determination of employee status.

I know all this. I haven't been in this profession for 30 years for nothing and I have NEVER seen a staffing agency in which their workers meet the criteria to be independent contractors.

You have implied to the original poster that workers assigned through a temp agency are automatically "independent contractors". That is just not true. The "profession" of a worker is not the determining factor in deciding whether a worker is an employee or an independent contractor. Job duties determine whether an employee is exempt from the overtime and minimum wage provisions of the FLSA.

You're giving the poster incorrect (or at least misleading) information.

I know all this. I haven't been in this profession for 30 years for nothing.

You have implied to the original poster that workers assigned through a temp agency are automatically "independent contractors". That is just not true. The "profession" of a worker is not the determining factor in deciding whether a worker is an employee or an independent contractor. Job duties determine whether an employee is exempt from the overtime and minimum wage provisions of the FLSA.

You're giving the poster incorrect (or at least misleading) information.

You're right, my first post was a little misleading. What I meant to say was, MOST temp agencies in Florida, put you in the status of "contractor" when you are hired. Maybe not all do this but every company that I have dealt with does and I have dealt with at least 10 different ones. The profession determines what type of work you will be doing and I in no way implied that your profession alone qualifies you as a contractor or not. It's one small sliver in the whole tree. Just like you said, Job duties determinate your status as "contractor" or "employee" but I know you mean that is just a small sliver in the tree. There are many deciding factors and the supreme court has ruled on this already.

You stating that an "..an employee is an employee, whether called "contract" or "temp" or Gary." Is also misleading as it is false. If you are a "contractor" you are NOT an employee. I think it's safe to say the original person who posted this is on "contractor" status with that temp agency and thus is not entitled to the FLSA rights as an "employee". Only by finding out the details of this persons job, can you determine their relationship status with the employer. I would be willing to make fair wager to say that they are a "contractor".

And if you want to get extremely technical, the temp agency is the contractor and the person contracted to do the job would be classified as a "sub-contractor". The "contractor" and the "sub-contractor or contractual" would be exempt from much of the FLSA because their status is "contractor" and NOT "employee."

When you worked these jobs as a temp, did you receive a W-2 or a 1099?

While there are some temporary jobs that could be a contractor as opposed to employee, there is no way a staffing company could legitimately classify a temp receptionist, production worker, CNA or innumerable other jobs as a "contractor." They are non-exempt employees and must be paid overtime, even if the staffing company cannot bill the client for the overtime. From a legal standpoint, the client company will also be on the hook for the overtime for a non-exempt employee, should the staffing company not pay up.

There was a relatively recent court decision involving a nurse who worked at one hospital, but through at least two different staffing companies. She did not work overtime for any one agency, but did work more than 40 hours a week for the hospital. No agency was tagged for the overtime, but the hospital was (it is called "joint employment").

And if you want to get extremely technical, the temp agency is the contractor and the person contracted to do the job would be classified as a "sub-contractor". The "contractor" and the "sub-contractor or contractual" would be exempt from much of the FLSA because their status is "contractor" and NOT "employee."

Thank you. My point exactly. :)

When you worked these jobs as a temp, did you receive a W-2 or a 1099?

While there are some temporary jobs that could be a contractor as opposed to employee, there is no way a staffing company could legitimately classify a temp receptionist, production worker, CNA or innumerable other jobs as a "contractor." They are non-exempt employees and must be paid overtime, even if the staffing company cannot bill the client for the overtime. From a legal standpoint, the client company will also be on the hook for the overtime for a non-exempt employee, should the staffing company not pay up.

There was a relatively recent court decision involving a nurse who worked at one hospital, but through at least two different staffing companies. She did not work overtime for any one agency, but did work more than 40 hours a week for the hospital. No agency was tagged for the overtime, but the hospital was (it is called "joint employment").


W-2 or a 1099 only show that either they took taxes out or didn't take taxes out. You can still be a contractor in either case. You are correct about joint employers but that doesn't have anything to do with the issue at hand.

You are absolutely correct on the type of jobs you list. This is why I said profession and/or job duties are part of the determining factor. As for me, I worked in the Professional type of temp agencies. These are 100% contractual jobs. If I was digging ditches or doing manual labor(as you said production worker) it would be a much different story. My whole point to this is when I said "MAYBE" in the first post. My maybe meant more info is needed and profession/job title/duties are required to really say yes or no in their situation. I didn't spell it all out the first time because I figured people on this site would know why I said maybe. The law isn't black and white and therefore the answer to their question isn't going to be black or white.

Here is a recent decision if you are willing to read. I do realize it's on a state website but it was a federal court that ruled on it:

Landmark Appeals Court Case Holds Security Guards are Not Protected By the FLSA Based on Status as Independent Contractors, Not Employees, Therefore Cannot Bring Overtime Case. (Johnson, et. al. v. Unified Government of Wyandotte County/Kansas City, Kansas and Housing Authority of Kansas City, June 7, 2004)

http://www.kscourts.org/ca10/cases/2004/06/01-3398.htm

Thank you. My point exactly. :)

That posting, contradicts what you said a few postings up. Glad you now agree. 30 years huh?



OK, no offense but NO, an employee is an employee, whether called "contract" or "temp" or Gary. An employee has taxes withheld. Workers assigned to a client through a temp staffing agency are employees of the staffing agency. The term "contract employee" is a misnomer at best and has nothing to do with this issue.

Okay, let's cut to the chase here.

Onelovemaru, regardless of what Florida law may say or not say, FEDERAL law will not permit an employee, regardless of what you call them, to be docked 15 minutes for being one minute late. If you disagree, post a link to the law that says otherwise.

Since the staffing agency would be the employer of the OP, the law you post will, of course, show how the staffing agency can refuse to pay. And yes, I see the link you've already posted. There is NO way that a temp employee is an IC where the staffing agency is concerned.

Okay, let's cut to the chase here.

Onelovemaru, regardless of what Florida law may say or not say, FEDERAL law will not permit an employee, regardless of what you call them, to be docked 15 minutes for being one minute late. If you disagree, post a link to the law that says otherwise.

Since the staffing agency would be the employer of the OP, the law you post will, of course, show how the staffing agency can refuse to pay. And yes, I see the link you've already posted. There is NO way that a temp employee is an IC where the staffing agency is concerned.

I never said they could be docked. I even said the employer should pay them for every minute they are there. This is exactly what I said "As for docking 15mins for being late, that does not sound legal. You should be getting paid for every minute you are there. Again, check the contract you signed. There may be a provision for this as well." <-- the provision I am talking about may or may not even be legal. That's why I said check the contract you signed AND that's why I said it does not sound legal.

There is NO way they can be a contractor? How about you post me the law that says a temp agency can't use contractors. Good luck with that one.

You yourself said that the staffing agency was the employer. If they are employees, they are not contractors.

You yourself said that the staffing agency was the employer. If they are employees, they are not contractors.

Can you quote me where I said that?

By definition they are all employees. It's someone who works for someone else. But it's the STATUS that makes the difference. If someones status is "contractor" then they are a contract employee. This is not my first time saying this. Here are a few times I mentioned this already. As for the definition of "status", that refers to the employees relationship with the employer.

Even the supreme court ruling refers to status. "Additionally, the Supreme Court has held that the time or mode of pay does not control the determination of employee status."

"...Not Protected By the FLSA Based on Status as Independent Contractors.."

"And if you want to get extremely technical, the temp agency is the contractor and the person contracted to do the job would be classified as a "sub-contractor". The "contractor" and the "sub-contractor or contractual" would be exempt from much of the FLSA because their status is "contractor" and NOT "employee.""

"..put you in the status of "contractor" when you are hired..."

"...Job duties determinate your status as "contractor" or "employee..."

I've probably said it a few times more but I'm tired of looking. I apologize for not spelling out and dotting my i's in every single little thing I said. I thought that people were some what experienced with the law here and could understand what I was saying. I apologize if I was rude to anyone and if I do ever come back, I'll make sure to spell everything out and define every word and term.

No offense back to you but YES it does matter. You are classified as a contract employee in Florida when you are a temp. Depending on this persons profession, they would be considered an independent contractor and thus the FLSA does not apply to them because they are not considered an "employee".

The word employee jumps right out at me.

The word employee jumps right out at me.

Dude, are you serious? Did you read my post right above yours?

Dude, are you serious? Did you read my post right above yours?

Yep, serious. Just quoting you like you asked.

Yep, serious. Just quoting you like you asked.

OK and right where you quoted me, what is the word right before employee that you made bold? Oh that's right, it says "contract" before it.

cbg said this "You yourself said that the staffing agency was the employer. If they are employees.."

You quoted me saying "contract employee" NOT what cbg said I said. Would you like to try again?

Do you at least understand the status difference between "employee" and "contractor" in accordance with the "status" of the employee?

This is fast becoming pointless.

Either an individual meets the legal definition of a contractor or they do not. If they do not, they are employees regardless of what they are called.

From the law's perspective, they are employees unless they are proven not to be.

None of this has anything to do with the OP's question. They are employed by the temp agency; the agency is responsible for seeing that they are properly paid.

This discussion is closed.