Dear ebtone,
The short answer is "No".
The long answer is "No, and don't let her do that because if she gets
hurt and she's not an employee, she's not covered by workman's comp,
the business could lose its insurance policy and the business could
get sued."
While on the surface, this would appear to be a matter of state law,
it is, in fact, a matter of Federal law. According to Federal
standards, an employee is someone specifically employed for
compensation by a company. These employees are covered by the Fair
Labor Standards Act:
FLSA Advisor
[ http://www.elaws.dol.gov/flsa/screen5.asp ]
Further implications of being an "employee" are discussed at length in
this article from the Monthly Labor Review Online (requires Acrobat
Reader):
"What is an employee? The answer depends on the Federal law"
[ http://www.bls.gov/opub/mlr/2002/01/art1full.pdf ]
According to a 1929 definition, employment revolved around the
following:
"1. The employer had the power to select and engage the employee.
2. The employer paid wages to the employee.
3. The employer had the power to dismiss the employee.
4. The employer had the power to control the conduct of the employee."
The IRS defines an employee as meeting the following criteria:
"1. A person is required to comply with another person's instructions
about when, where and how he or she is to work.
2. Training is provided.
3. Integration of the worker's services into the business operations
of the person for whom services are performed.
4. A requirement that the services must be rendered personally by the
worker.
5. The person for whom the services are performed has the right to
hire, supervise and pay assistants.
6. A continuing relationship.
7. The person for whom the services are performed has the right to set
hours.
8. The worker must devote substantially full time to the business of
the person for whom the services are performed.
9. Work is performed on the premises of the person for whom the
services are performed.
10. The services are performed in an order or sequence set by the
person for whom the services are performed.
11. The worker must submit regular reports.
12. Payment is made by the hour, week or month.
13. The person for whom the services are performed pays business or
travel expenses.
14. The person for whom the services are performed furnishes equipment
or materials.
15. The person for whom the services are performed has the right to
discharge.
16. The worker has the right to terminate his or her relationship with
the person for whom the services are performed, at any time and
without incurring liability."
Do note that payment is listed in both sets of criteria.
These are further discussed in Gene A. Blumenreich's article here:
What is an Employee?
[ http://www.aana.com/legal/legbrfs/1989/12lb89.asp ]
To further check, I put in a call to Mark, a seasoned retail manager.
He explains:
"No company should ever allow anyone to work off the clock, ever.
Only people who are officially employed should be working in a store,
and then only while on the clock.
An employee is someone I have to fill out paperwork for - W4s, I-9s,
benefits forms for corporate, payroll. An employee is someone who, if
they get hurt here, is covered by Workman's Comp. An employee is
someone I have to do payroll for. An employee is someone who gets tax
forms from the company every January.
Allowing a non-employee work in the store violates most business
liability insurance policies, as well as OSHA guidelines. If a
non-employee were working in the store, and got hurt, it would get
ugly fast. The company's insurance would not pay, Workman's Comp
would not pay, OSHA would impose disciplinary actions, and the company
is suddenly wide open for a civil suit. Not to mention, if the person
is not officially employed, they have absolutely no rights whatsoever
- the business is not obligated to look out for her safety.
Tell your client not to let his wife work in his place of employment
unless she is officially hired."
I hope this answers your question, ebtone. Please let me know if you
need further clarification.
missy-ga |
