Hi tangxiaodidi,
According to the State of California, if you are indeed an Independent
Contractor, the company is exempt from overtime requirements. At this
stage, the determination as to whether or not you ARE an Independent
Contractor is done by the state. If you were to make a wage claim for
overtime, this would trigger an investigation which would result in
that determination. That official determination would affect all the
"Independent Contractors" that work for that company, in that
position.
Some of the factors that are considered are:
(paraphrased from Numbers 1-11 at the link below)
There are others, more complex, but this is the general idea:
Are you licensed to provide these services, or do you have a business
providing these services and this company is "one of your customers?
Does the company you work/contract for hire you because they don't do
your job in the normal course of their business?
Who supplies the tools, supplies, etc? Do you wear a uniform, if so,
whose, theirs or yours? If not, do they dictate what you can wear?
Can you do the work anytime you want, or must you report at a specific
time? Can you come and go as you please?
Do they tell you WHAT to do and HOW to do it? Or are you a
profesional, hired to do a specific job, you go and do it, with no
supervision, then leave...?
Is there a company reprentative there during the event to "supervise" you?
Do you have an opportunity to profit, earn more or less because of your efforts?
Are you paid a flat rate, or hourly --and told it'll be for 8 hours,
but it takes 10?
At times you are not working for this company, do you provide the same
service to/for others? (Is this your career, or a job?"
Reference:
Read this whole page, but here's an excerpt to get you interested...
Independent contractor vs employee
http://www.dir.ca.gov/dlse/FAQ_IndependentContractor.htm
..."Not all workers are employees as they may be volunteers or
independent contractors. Employers oftentimes improperly classify
their employees as independent contractors so that they, the employer,
do not have to pay payroll taxes, the minimum wage or overtime, comply
with other wage and hour law requirements such as providing meal
periods and rest breaks, or reimburse their workers for business
expenses incurred in performing their jobs. Additionally, employers do
not have to cover independent contractors under workers? compensation
insurance, and are not liable for payments under unemployment
insurance, disability insurance, or social security..."
More at the link, but especially don't miss Question #6:
..."
Q. What can I do if I believe my employer has misclassified me as an
independent contractor and as a result am not being paid any overtime?
A. You can either file a wage claim with the Division of Labor
Standards Enforcement (the Labor Commissioner's Office), or you can
file an action in court to recover the lost overtime premiums. In both
situations, it will first be necessary to determine your employment
status, that is, employee or independent contractor, before the issue
of overtime can be addressed and decided. Additionally, if it is
determined that you are an employee and you no longer work for this
employer, you can make a claim for the waiting time penalty pursuant
to Labor Code Section 203. Eligibility for this penalty is dependent
upon your employment status, as independent contractors are ineligible
for the waiting time penalty..."
There are other links to follow from that page that you should explore further.
I'd like you to note that if you do decide to file a wage clain to
attempt to get the employee classification determination, the employer
cannot retaliate against you, and fire you, without penalties. Be sure
to read Question #9 of the link above.
It's possible, although not likely, that this company got a state or
professional determination before hiring you and the others that do
your job. If it's a LARGE corporation, they most likely have covered
their bases in this way, however most small to mid-size companies
simply try to "get-away-with-it" as described above.
I hope I have pointed you in the right direction as to what your
options are, and what you can do. If I can be of further assistance in
regards to this topic, please don't hesitate to ask for Clarification
(before rating this Answer), and I'll be happy to assist further.
~~Cynthia
Search terms used at Google:
California "Independent contractor" overtime |
