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Law Educator, Esq.
Law Educator, Esq., Attorney
Category: Legal
Satisfied Customers: 90436
Experience:  JA Mentor -Attorney Labor/employment, corporate, sports law, admiralty/maritime and civil rights law
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I have been working for a petsitting company as an "independent

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I have been working for a petsitting company as an "independent contractor" for 9 months. The owner and I have had a falling out. She has had me working at all hours of the day and night (including texting and phone calls with clients and the company owners), as well as collecting and client holding money for extended periods of time (often over a month). I feel as though I've been a salaried employee on call 24-7 rather then independent and this is a term she's hiding behind to avoid worker's compensation and certain taxes. Does this sound like independent contracting or employment to you?

Also, a non-compete agreement was signed. I have heard from another lawyer that, as long as I don't ask clients to use me and the clients won't testify in court, that agreement is largely for show. Is there a legal way to continue servicing my clients once I leave the company?

Thank you
Submitted: 1 year ago.
Category: Legal
Expert:  TexLaw replied 1 year ago.
Hi,

Thank you for your question.

Whether you are actually considered a independent contractor or an employee actually depends on the amount of control the employer asserts over you. This is determined on a case by case basis.

A. Facts that show whether the business has a right to direct and control how the worker does the task for which the worker is hired include the type and degree of:

1. Instructions the business gives the worker. An employee is generally subject to the business' instructions about when, where, and how to work. All of the following are examples of types of instructions about how to do work:
When and where to do the work
What tools or equipment to use
What workers to hire or to assist with the work
Where to purchase supplies and services
What work must be performed by a specified individual
What order or sequence to follow

The amount of instruction needed varies among different jobs. Even if no instructions are given, sufficient behavioral control may exist if the employer has the right to control how the work results are achieved. A business may lack the knowledge to instruct some highly specialized professionals; in other cases, the task may require little or no instruction. The key consideration is whether the business has retained the right to control the details of a worker's performance or instead has given up that right.


2. Training the business gives the worker. An employee may be trained to perform services in a particular manner. Independent contractors ordinarily use their own methods.

3. Financial control

B. Facts that show whether the business has a right to control the business aspects of the worker's job include:


1. The extent to which the worker has unreimbursed business expenses. Independent contractors are more likely to have unreimbursed expenses than are employees. Fixed ongoing costs that are incurred regardless of whether work is currently being performed are especially important. However, employees may also incur unreimbursed expenses in connection with the services they perform for their business.

2. The extent of the worker's investment. An employee usually has no investment in the work other than his or her own time. An independent contractor often has a significant investment in the facilities he or she uses in performing services for someone else. However, a significant investment is not necessary for independent contractor status.

3. The extent to which the worker makes services available to the relevant market. An independent contractor is generally free to seek out business opportunities. Independent contractors often advertise, maintain a visible business location, and are available to work in the relevant market.


4. How the business pays the worker. An employee is generally guaranteed a regular wage amount for an hourly, weekly, or other period of time. This usually indicates that a worker is an employee, even when the wage or salary is supplemented by a commission. An independent contractor is usually paid by a flat fee for the job. However, it is common in some professions, such as law, to pay independent contractors hourly.

5. The extent to which the worker can realize a profit or loss. Since an employer usually provides employees a workplace, tools, materials, equipment, and supplies needed for the work, and generally pays the costs of doing business, employees do not have an opportunity to make a profit or loss. An independent contractor can make a profit or loss.

C. Type of relationship

Facts that show the parties' type of relationship include:

1. Written contracts describing the relationship the parties intended to create. This is probably the least important of the criteria, since what really matters is the nature of the underlying work relationship, not what the parties choose to call it. However, in close cases, the written contract can make a difference.

2. Whether the business provides the worker with employee-type benefits, such as insurance, a pension plan, vacation pay, or sick pay. The power to grant benefits carries with it the power to take them away, which is a power generally exercised by employers over employees. A true independent contractor will finance his or her own benefits out of the overall profits of the enterprise.

3. The permanency of the relationship. If the company engages a worker with the expectation that the relationship will continue indefinitely, rather than for a specific project or period, this is generally considered evidence that the intent was to create an employer-employee relationship.


4. The extent to which services performed by the worker are a key aspect of the regular business of the company. If a worker provides services that are a key aspect of the company's regular business activity, it is more likely that the company will have the right to direct and control his or her activities. For example, if a law firm hires an attorney, it is likely that it will present the attorney's work as its own and would have the right to control or direct that work. This would indicate an employer-employee relationship.


Thus,there are mixed factors from what you have told me that make me think you are an independent contractor. However, you may challenge this status by contacting the Texas Workforce Commission and asking to file a wage complaint.

In regard to your non-compete agreement, there are probably ways around this by challenging it in court should the owner actually try to enforce the agreement after you leave. Enforcing the agreement is generally going to cost more than any actual revenue you might cause her. So, I would agree with the attorney you spoke to that said the agreement is most likely for show. However, it could very well be enforceable, especially for clients that you poach from her once you leave.

Please let me know if you have any questions. Please also remember to kindly rate my answer positively so that I am compensated by the website for my work on your question. Rating does not cause any additional charges and will not prevent us from further discussing your questions.

Best Regards,
ZDN
Customer: replied 1 year ago.

So if I'm clear with these clients that I cannot legally ask them to work with me but they specifically request it on their own, would this be covered by the agreement or would my not pursuing them be a factor in my favor should she attempt to challenge? Many clients will ask and I want to know what to say and if it's okay to leave the door open.


 


Thank you

Customer: replied 1 year ago.
Relist: Answer quality.
Expert:  TexLaw replied 1 year ago.
Hi,

I'm sorry I did not see your next question (sometimes the application interchange on the website does not work).

A non-compete means that you cannot compete at all in the same geographic area with your ex-employer, no matter how the clients get to you.

Expert:  TexLaw replied 1 year ago.
Please let me know if you have any further questions on this subject. Please also remember to rate my answer so that I may be compensated for my work.

Thanks,
ZDN
Customer: replied 1 year ago.

This former employer is now withholding my last paycheck. Is this legal?

Expert:  TexLaw replied 1 year ago.
If you accept this answer and rate me so I know I am going to be paid for my work on your question I will answer your separate question.
Customer: replied 1 year ago.
Relist: Incomplete answer.
This former employer is now withholding my last paycheck. Is this legal?
Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your question, I see you have rated your previous expert as giving you bad service for providing you a correct answer, was there something he did not answer for you regarding your original question that you would like answered?
Customer: replied 1 year ago.
Relist: Other.
Last two responses are not answers. I was told that I could submit additional questions as needed, yet no one will answer.

Happy to rate someone who actually answers my follow-up question:

This former employer is now withholding my last paycheck. Is this legal?
Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your response. As stated above, different expert here and I just wanted to make sure I understood what more information you wanted specifically before I answered you.

The answer to your question is not a simple yes or no answer I am afraid. If you are deemed to be properly classified as a independent contractor, then the company can withhold your payment alleging you were in breach of contract and they are withholding pay based on that breach. In this case you would have to sue the company for a breach of contract to recover your money.

If you are improperly classified as an independent contractor, as it sounds you might be based on your description (and the other expert provided you the guidelines regarding being an employee versus an independent contractor), the it is ILLEGAL for an employer to withhold wages from an employee under the Fair Labor Standards Act based on an employee/employer dispute. If you are found to be an actual employee and not an independent contractor, then your suit would be for failure to pay wages and if the employer is found in violation you can sue for up to 3 times the amount of wages owed plus attorney's fees or you can file a claim with the US Department of Labor or Texas Workforce Commission for them to investigate and seek your money for the non-payment of wages.

It is imperative, therefore, that the first step here is filing a claim of improper classification with either the US DOL or the TWC wage and hour divisions and have your status as employee or independent contractor determined first. Then from that point you would have your options as to how to collect the money due either through a breach of contract suit if you are an independent contractor or an illegal withholding of wages pursuant to the FLSA and Texas Payday Law (which would be to your benefit as you could collect more in damages).



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Law Educator, Esq., Attorney
Category: Legal
Satisfied Customers: 90436
Experience: JA Mentor -Attorney Labor/employment, corporate, sports law, admiralty/maritime and civil rights law
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