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I am I considered an Employee or not?!?! Arizona

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  • I am I considered an Employee or not?!?! Arizona

    Hi its me again. My Office manager is now arguing that i am not an employee and that is why they are not paying for my attendance at office meetings. I have worked as a independent contractor before, but at this job i have always thought that I was an employee. So am i an employee or not???

    Here are my parameters at work:
    I am a massage therapist, in a Chiropractors Office.
    I do receive a W2 tax form, NOT a 1099
    I receive a regular bi-monthly pay check, plus tips.
    I am paid a specific rate per massage that I give.
    I do not receive a percentage of what the doctor gets paid.
    I do leave the premise freely if i do not have a client to see.
    The Doctor supplies all linens, oils, music, table, ect.. used for my job.
    I submitted a resume for this position, when i was first hired.
    I have been asked to contact the office manager, when there is an issue.
    The patients pay the office, not me.


    I'm sure there is more, but i think those are the basics. I will be filing out Form SS-8 "determination of workers status" today to see what the IRS has to say about my status, i don't know if that is needed, but i figured it can't hurt.
    Thank you for all the help thus far.


    From the WHD Fact-sheet #22:
    Definition of "Employ"
    By statutory definition the term "employ" includes "to suffer or permit to work." The workweek ordinarily includes all time during which an employee is necessarily required to be on the employer's premises, on duty or at a prescribed work place. "Workday", in general, means the period between the time on any particular day when such employee commences his/her "principal activity" and the time on that day at which he/she ceases such principal activity or activities. The workday may therefore be longer than the employee's scheduled shift, hours, tour of duty, or production line time.

  • #2
    You receive a W-2? You're an employee. Case closed.
    The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

    Comment


    • #3
      Thank you, it does seem that simple.
      Its being argued that because i leave the office whenever i don't have work that i am not an "regular Employee". Are there different types of Employees? Some that should not be paid for office meetings. Ahhh i feel like I am going around and around in circles with this office. So how can i prove to my employer that i am an employee, by law?

      Comment


      • #4
        There are two classes of employee; exempt and non-exempt. Your job duties determine whether you are exempt or non-exempt. If you are non-exempt, you must be paid for each and every hour that you work, plus overtime if you work over 40 hours in a week. If you are exempt, you get paid a regular salary that can only be docked for limited reasons, but you are never, under any circumstances whatsoever, entitled by law to overtime.

        People try to equate salaried with exempt and hourly paid with non-exempt, but that is not the case. Not all salaried employees are exempt; not all (though most) hourly employees are non-exempt.

        I cannot tell from what you have posted if you are exempt or not. If you are, then you need not be paid additional pay for office meetings. If you are not, you do.
        The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

        Comment


        • #5
          File a wage claim. Your employer loses. Issue settled.

          Past that, your employer does not have to believe any argument that you make. They probably already know that their argument is nonsense. They just do not care. They basically have sent you on a "snipe hunt".

          I can give you a pointer to the federal DOL rules on worker classification, which will not support their position, but your employer will likely just ignore any rules that they do not like.

          http://www.dol.gov/whd/regs/compliance/whdfs13.pdf

          http://www.irs.gov/businesses/small/...=99921,00.html
          "Reality is that which, when you stop believing in it, doesn't go away".
          Philip K. **** (1928-1982)

          Comment


          • #6
            So it looks like i need to research whether i am exempt or non-exempt. Thank you for pointing me in the right direction. I will begin that search.... thank you again for your time as well.

            Comment


            • #7
              It is (IMO) very unlikely that the normal duties of a massage therapist would qualify as Exempt. We basically would need someone with serious degrees and training. Basically the equivalent of a medical doctor. Past that, Exempt is a function of the actual job duties, not the job title. If a top level brain surgeon digs ditches, he/she is Non-Exempt, because ditch digging is Non-Exempt. I can give you a pointer to the white collar exceptions. Professional is normally the one that a health care professional would look at.

              http://www.dol.gov/whd/regs/compliance/fairpay/main.htm
              "Reality is that which, when you stop believing in it, doesn't go away".
              Philip K. **** (1928-1982)

              Comment


              • #8
                It was the professional exemption I was thinking about. I know when a friend of mine trained as a massage therapist, it was a four year course, or at least she took four years to complete it. And a professional exemption is one of the ones that can be paid on an hourly basis. But I don't know enough about this particular poster's situation to say if this particular poster is exempt or non-exempt.
                The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

                Comment


                • #9
                  Most Massage therapist training is completed in 8-12 months, and is considered mechanical arts or skilled trade. I also do not meet the $455 a week or $23,600 criteria for being considered exempt, as i only work part time.
                  So this looks like we have an answer I have been on a "wild goose chase" to discover i am a non-exempt employee.

                  I will file a Wage Claim thank you both.

                  Comment


                  • #10
                    With the "practice of medicine" exception, even a 4 year degree by itself (IMO) would be likely inadequate. One basically has to look at the case law and see if there are any actual examples of massage therapists being considered Exempt, and if so, what the related factors were. There are a lot of people in the medical profession with 4 year degrees that are not considered Professional by the government.

                    http://www.dol.gov/dol/allcfr/ESA/Ti...CFR541.304.htm
                    "Reality is that which, when you stop believing in it, doesn't go away".
                    Philip K. **** (1928-1982)

                    Comment


                    • #11
                      You're the expert - I'll concede to you.
                      The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

                      Comment


                      • #12
                        Or not (expert). But I have seen opinion letters of people with 4 year degrees whom federal DOL does not consider Exempt, including most pharmacists. Most nurses. Most medical techs. I am not saying that it is impossible for a massage therapist to be exempt, just not obviously likely. One generic problem with Professionals is that it is mostly a hard requirement that there is indeed a state licensed "profession". And that all licenses are not necessarily "professional" licenses. Any time one reads opinion letters on the (learned) Professional exception, they always seem to touch base on the specifics of the licensing requirement.
                        "Reality is that which, when you stop believing in it, doesn't go away".
                        Philip K. **** (1928-1982)

                        Comment


                        • #13
                          Closer to an expert than I am. I defer to you and Patty on exempt - non-exempt issues.

                          I really haven't had much occasion to study the Professional exemption; the only times I've had to deal with that one, the job duties were such that they were unquestionably exempt. I can make a reasonable guess on the Executive and (as much as anyone can) the Administrative, but the Professional and Computer are just outside my realm of experience.
                          The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

                          Comment


                          • #14
                            Originally posted by cbg View Post
                            ... and (as much as anyone can) the Administrative...
                            Speaking of which, the feds actually issued useful guidance on that one recently. DOL is apparently (finally) moving off of over reliance on opinion letters, and have instead issued a "Administratorís Interpretation", which is more like the more generic opinions such as Revenue Rulings that IRS issues. What is interesting is not so much some employer trying to argue that Loan Officers fall under the Administrative exception, but rather federal DOL is giving a good overview of exactly how the feds call balls and strikes on the Administrative exception.
                            http://www.dol.gov/WHD/opinion/admin...SAAI2010_1.pdf

                            Hopefully we will see a few more of these.
                            "Reality is that which, when you stop believing in it, doesn't go away".
                            Philip K. **** (1928-1982)

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