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Independent Contractor V Employee Status California

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  • Independent Contractor V Employee Status California

    I was working for a Substance Abuse Inpatient Rehab (until yesterday, when I finally quit) as an "independent contractor". Initially I was hired @ one rate per hour and then when paid it was for another rate. When I inquired about this, I was informed that once I had been there for 90 days, I would receive a review and my hourly rate would increase according to my performance. I had been employed for 219 days, requested the 90 day review umerous times and had yet to recieve one, hence my payrate remained the same). I have since investigated my independent contractor status on the web and discovered that I was actually an employee. I worked hours that were scheduled by a supervisor at thier discretion (I could request particular shifts, but had no ultimate say in when I was working or how many hours a week I was scheduled), I had to request days off, record my hours worked on a timesheet. I was under the direct of a supervisor, her supervisor and the owners of the facility. I was recently "docked" of 4 hours of overtime for not recording a "lunch" on my timesheets (even though it is nearly impossible to take a scheduled lunch break with answering the phone, eating with the clients while they eat dinner and discuss thier problems, make plates for the clients who may be out, doing the client and staff dishes, etc). My supervisor and the Human Resources person both verbally instructed me to henceforth falsify my timesheet to reflect this unpaid meal break. They said to record that I was leaving a half hour after my scheduled shift (say I worked 7am to 3 pm, I was to record a 30 minute meal break and sign out of my shift at 3:30pm, yet I was only working and scheduled to 3 pm) I had to sign a Letter of Ethics for my state certification as a substance abuse counselor intern with CAADAC, as well as one with this company upon my hire. The practice of falsifying my employee records (the timesheet) violates these agreements, as well as my integrity. When I brought the Ca meal periods laws to the attention of my supervisor, she ultimately threatened my continued employment if I pursued the issue any further by saying that I was "skating on thin ice, so why would I want to pursue this issue?" My repsonse was because I was actually performing work duties, hence the meal period was legally considered an on duty one, not an unpaid one, and that I felt I was entitled to the overtime I had actually worked that I was docked for. I also brought up that on numerous occassions I have put in overtime without being compensated for it because I did not account for it on my timesheets (like the night I had already turned in my timesheet and a client was in distress, needed to "talk" and I ended up working an additional hour after I had already "clocked out" or the time I on my "day off" that I came in, took the company vehicle to Costco and bought the food supplies for the house, which took me over 8 hours of my personal time to do with travel and putting it all away.

    Am I correct that the meal time is on duty and not unpaid? There is no place separate for employees to eat, and to leave the premises would require a 10 mintute drive to the highway and another 10 to 30 minutes to a fast food restuarant, which is more that the 30 minutes we are instructed to document taking. We did not have a "break" schedule where one employee is covering the work related activities while another takes their meal, and we had to be at the beck and call of the clients at all times while on shift. Our "10 minute breaks" couldn't even really be completely taken because my supervisor would see me smoking a cigarette near the trash cans and ask me to do something, or I had to answer the phone (we have the main line forwarded to a cell which we answer) or a client would come look for us and make requests.

  • #2
    Am I correct that the meal time is on duty and not unpaid?
    It may be that the meal period could not be classified as an "on duty" meal period which would mean that you are entitled to the one hr pay penalty for each day you didn't receive one.
    I have been interested in employment rights for some time, however I am not a lawyer. Always consult with an attorney, as they are more knowledgeable.

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    • #3
      Originally posted by joe916
      It may be that the meal period could not be classified as an "on duty" meal period which would mean that you are entitled to the one hr pay penalty for each day you didn't receive one.
      My supervisor said technically that my "cigarette breaks" if added up would add up to an unpaid 30 minute meal period, but those were interupted as well with work duties (ie the telephone) and should be classified as 10 minute breaks. Most of the time I would spend 3-5 minutes smoking, and put it out. At no time while on my shift breaks was I not to be available to upper management (they would call my personal cell phone if they didn't "see" me) or the clients, even while attempting to take a legal a 10 minute break. I hardly had time to go to the restroom (and most times did not do so while on shift for 8+ hours). If I was not completely relieved of all duties for a 30 minute period, wouldn't that mean that the "on duty meal" period rules apply?

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      • #4
        Yes, that's exactly what it means.
        I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

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        • #5
          Thank you! I just received my final paycheck in the mail, but I have some copies of my old timesheets, so I am going to pursue this further with the DOL. I requested copies of all of my employee records, but they said they didn't keep the timesheets and that I couldn't have them. I could have a letter stating an approximation of how many hours I had worked there (for my state certification, I need to document the hours). I got that letter yesterday as well, but they still refuse to allow me access to my records (my TB test results, first aid and CPR certs are part of that file & I need copies of them, as well) or copies of anything.

          I am pretty sure that they have shorted me in the past regarding overtime and I never was able to take an actual lunch break during the 878 hours they state I have worked for them. I have always worked at least 8 hour days, sometimes up to 18 hours, without being completely relieved of my duties at any time. And everyone who is employed there works this way! That's alot of violations!

          Comment


          • #6
            Independent Contractor

            There is no possible way you could be considered an independent contractor. The employer will fill a 10-99 on you and you will be required to pay all due income taxes including SS and self-employment taxes. You will also be contacted by the city you worked in requesting that you pay city taxes and apply for a business license.
            You should have this checked out with the EDD and make a wage claim for the overtime you have not been paid... this should trigger an investigation of your employee status.

            Comment


            • #7
              likinglife, this post is several weeks old. It appears the OP had determined what action he was going to take and he hasn't been back for further advice since.
              I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

              Comment

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