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LawTalk
LawTalk, Attorney
Category: California Employment Law
Satisfied Customers: 27880
Experience:  I have 30 years of experience in the practice of law, including employment law and discrimination law.
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Im in California. I have a wedding photography business.

Resolved Question:

I’m in California. I have a wedding photography business. We’re capable of booking and shooting several weddings per day on the weekends.
One of my photographers has a separate, fulltime career during the week, but shoots weddings for me on the weekends to make extra money. He uses his own equipment.
Even though he starts and ends his work day at his house and he uses his own equipment, I pay him as an hourly employee. I do this for two reasons. One, so he’s covered by all of my insurance policies, both liability and worker’s comp; neither of which he has. Two, I’ve been sued by two former photographers (similar to this him) for misclassifying them as ICs. Paying this fellow as an employee is the best way for me to avoid all legal problems.
It’s not uncommon for me to send him to shoot a wedding that’s 90 minutes away, so 90 mins there and 90 mins back. And it’s not uncommon for him to have three different locations he has to drive to for the wedding (ie prep location, ceremony location, reception location). So it’s imperative he has his car with him for the job.
For the purpose of paying him his hourly wage and his mileage expense, when does he go on and off the clock? #1 - From the time he leaves and returns to his house? or #2 - From the time he arrives at the job until the time he leaves the job? If #2, I have to compensate him for the three hours of drive time and the mileage or else he won’t take the job. It won’t be worth his while. If #2, how do I pay him for the drive time and mileage to and from the job?
Submitted: 2 years ago.
Category: California Employment Law
Expert:  LawTalk replied 2 years ago.
Good morning,

I'm sorry to hear of the situation.

It seems that your first question is a non-issue and he is not going to work if you don't pay him his travel time---and you probably should---but legally you do not have to.

An employee’s daily commute is considered ordinary home-to-work travel, and is not compensable work time under the federal Fair Labor Standards Act. This is true regardless of whether the employee works at one location or at many different job sites.

Likewise, legally his mileage expense does not include commute travel.

He is paid from the time he arrives at the workplace for the day, and he is paid travel time from one workplace to the next, along with mileage, until the last sit of the day. After his work is done at that site, he is off the clock both in terms of hourly wages and mileage---unless you require that he take the completed work somewhere before he heads back home.

You may compensate him however you would like for home to work and back.As there is no legal demand that you do so, you may pay what you want. However, if you want him covered on your liability policy and workers compensation during that time, you will have to pay at least minimum wage during the travel time.

I hope that you found my answer informative, that you are accepting of my efforts and that you will rate my efforts based on the knowledge I have provided to you.

I wish you the best in 2012.

Thank you.

Doug
Customer: replied 2 years ago.

Thank you Doug. If I pay him minimum wage so he's covered by my WC and liability, do I need to include OT? ie if he's on the job site for nine hours? So including the drive time, his total hours would be 12. So would I pay straight time for the first 8 (1.5 hrs at minimum wage, then 6.5 hrs at his regular hourly rate), then time and a half for the remaining 4 (2.5 at his regular rate and 1.5 at minimum wage)?

Is there an easier and, most importantly, legal way to do this? ie each day is a different number of hours, sometimes just 5 onsite, sometimes 12. Could I quote him a piece work rate for each different job that would include all OT? Thank you.

Expert:  LawTalk replied 2 years ago.
Yes, overtime in CA is more than 8 hours in a day or 40 in a week.

Under both CA law, and federal wage laws, it is legal for an employer to pay different wages depending on the work being done by the employee. In fact there are even rules designed so that the employer and employee know how overtime worked should be paid when an employee works at two different tasks, and for differing hourly wages for each task.

When an employee works at two different jobs, and is paid at different wage rates for each job, the employer has two choices as to how to pay overtime.

The first is the weighted average. Using this method, the employee is paid overtime based on the weighted average of their non-overtime wage rates. If the number of hours worked at each pay rate varies from week to week, then this average must re-calculate this each week.

The second method is for you and your employer to agree, preferably in writing, that you will receive overtime at a rate not less than one and one-half times the hourly non-overtime rate applicable for the type of work performed during each overtime hour they work at that job.

Here is a great explanation of the process used in CA: http://www.calemployeerightsblog.com/2007/02/19/overtime-calculation-with-two-different-hourly-rates/

You of course are free to quote a piece rate for each job---so long as he is paid at least minimum wage based on the hours worked.

I hope that you found my answer informative, that you are accepting of my efforts and that you will rate my efforts based on the knowledge I have provided to you.

I wish you the best in 2012.

Thank you.

Doug
Customer: replied 2 years ago.

If I do a piece rate for the job and the client keeps him an extra hour, how would I pay him for that extra hour? ie if I give him $300 for a job that will be 9 hours on location, and the client decides to keep him an extra hour, what rate is he paid for the extra hour?

If the client does decide to keep him an extra hour, we're able to bill the client quite a bit, so ideally I'd like there to be a financial incentive for the photographer to encourage the client to keep him longer.

Expert:  LawTalk replied 2 years ago.
Good morning,

So long as your piece rate is greater than he would be paid by minimum wage---including overtime, double time etc.---you don't have a problem.

Because I help people here, like you, for a living---this is not a hobby for me, and I sincerely XXXXX XXXXX abiding by the honor system as regards XXXXX XXXXX I wish you and your family the best in your respective futures.

Would you be so kind as to Accept my Answer so that I may be compensated for assisting you? Bonuses for greatly informative and helpful answers are very much appreciated. Thanks Again,

Doug
LawTalk, Attorney
Satisfied Customers: 27880
Experience: I have 30 years of experience in the practice of law, including employment law and discrimination law.
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