Employment Law

Employment Law Questions? Ask an Employment Lawyer.

Ask a Lawyer,
Get an Answer ASAP!

Employment Law
This answer was rated:

I have been working for a petsitting company as an "independent

contractor" for 9 months....
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
Show More
Show Less
Ask Your Own Employment Law Question
Answered in 19 minutes by:
4/9/2013
TexLaw
TexLaw, Lawyer
Category: Employment Law
Satisfied Customers: 4,430
Experience: Contracts, Wrongful termination and discrimination
Verified
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
Ask Your Own Employment Law Question
Customer reply replied 4 years 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 reply replied 4 years ago
Relist: Answer quality.
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.

Ask Your Own Employment Law Question
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
Ask Your Own Employment Law Question
Customer reply replied 4 years ago

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

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.
Ask Your Own Employment Law Question
Customer reply replied 4 years ago
Relist: Incomplete answer.
This former employer is now withholding my last paycheck. Is this legal?
Law Educator, Esq.
Category: Employment Law
Satisfied Customers: 121,010
Experience: 20+ Years of Employment Law Experience
Verified
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?
Ask Your Own Employment Law Question
Customer reply replied 4 years 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?
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).



Thank you so much for using JustAnswer.com. I truly aim to please you as a customer, but please keep in mind that I do not know what you already know or don't know, or with what you need help, unless you tell me. If I did not answer the question you thought you were asking, please respond with the specific question you wanted answered. PLEASE use REPLY to EXPERT if you would like more information or if you feel something was not included in your answer.

Kindly remember the ONLY WAY experts receive any credit at all for spending time with customers is if you click on OK, GOOD or EXCELLENT SERVICE even though you have made a deposit or are a subscription customer. YOU MUST COMPLETE THE RATING FOR THE EXPERT TO RECEIVE ANY CREDIT, if not the site keeps your money on deposit.

Also remember, sometimes the law does not support what we want it to support, but that is not the fault of the person answering the question, so please be courteous.

PLEASE NOTE WELL WE ARE DEALING WITH LAWS OF 50 STATES PLUS FEDERAL LAWS, AS WELL AS DEALING WITH OTHER CUSTOMERS, SO PLEASE BE PATIENT AND BE ASSURED YOU ARE NOT BEING IGNORED.

There can also be a delay of an hour or more in between my answers because I may be taking a break.

You can always request me through my profile at http://www.justanswer.com/law/expert-paulmjd/ or beginning your question with “For PaulMJD…”

Law Educator, Esq.
Category: Employment Law
Satisfied Customers: 121,010
Experience: 20+ Years of Employment Law Experience
Verified
Law Educator, Esq. and 87 other Employment Law Specialists are ready to help you
Ask your own question now
Ask Law Educator, Esq. Your Own Question
Law Educator, Esq.
Law Educator, Esq.
Law Educator, Esq., Attorney
Category: Employment Law
Satisfied Customers: 121,010
121,010 Satisfied Customers
Experience: 20+ Years of Employment Law Experience

Law Educator, Esq. is online now

A new question is answered every 9 seconds

How JustAnswer works:

  • Ask an ExpertExperts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional AnswerVia email, text message, or notification as you wait on our site. Ask follow up questions if you need to.
  • 100% Satisfaction GuaranteeRate the answer you receive.

JustAnswer in the News:

Ask-a-doc Web sites: If you've got a quick question, you can try to get an answer from sites that say they have various specialists on hand to give quick answers... Justanswer.com.
JustAnswer.com...has seen a spike since October in legal questions from readers about layoffs, unemployment and severance.
Web sites like justanswer.com/legal
...leave nothing to chance.
Traffic on JustAnswer rose 14 percent...and had nearly 400,000 page views in 30 days...inquiries related to stress, high blood pressure, drinking and heart pain jumped 33 percent.
Tory Johnson, GMA Workplace Contributor, discusses work-from-home jobs, such as JustAnswer in which verified Experts answer people’s questions.
I will tell you that...the things you have to go through to be an Expert are quite rigorous.

What Customers are Saying:

I must thank you all for such a positive and knowledgeable Expert in your Employment Law category. She has provided much relief and answers for me in the midst of dealing with a case. I am totally pleased with her customer service and care.

MildredWashington, DC

Excellent direction from Socrateaser to help me preserve and pursue my rights as a proud American who has become unemployed in this messed-up economic downfall. Thank you

Happy CustomerDenver, CO

Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises!

Gary B.Edmond, OK

My Expert was fast and seemed to have the answer to my taser question at the tips of her fingers. Communication was excellent. I left feeling confident in her answer.

EricRedwood City, CA

I am very pleased with JustAnswer as a place to go for divorce or criminal law knowledge and insight.

MichaelWichita, KS

PaulMJD helped me with questions I had regarding an urgent legal matter. His answers were excellent.

Three H.Houston, TX

Anne was extremely helpful. Her information put me in the right direction for action that kept me legal, possible saving me a ton of money in the future. Thank you again, Anne!!

ElaineAtlanta, GA

< Previous | Next >

Meet the Experts:

Tina

Tina

Lawyer

8,184 satisfied customers

JD, BBA, recognized by ABA for excellence.

Allen M., Esq.

Allen M., Esq.

Employment Lawyer

12,549 satisfied customers

Employment/Labor Law Litigation

Marsha411JD

Marsha411JD

Lawyer

12,316 satisfied customers

Licensed Attorney with 29 yrs. exp in Employment Law

Infolawyer

Infolawyer

Lawyer

12,054 satisfied customers

Licensed attorney helping employers and employees.

JB Umphrey

JB Umphrey

Lawyer

6,273 satisfied customers

Assisting employees and employers for over 14 years.

John

John

Employment Lawyer

3,912 satisfied customers

Exclusively practice labor and employment law.

Dimitry K., Esq.

Dimitry K., Esq.

Attorney

3,007 satisfied customers

I provide employment and discrimination law advice in my own practice.

< Previous | Next >

Related Employment Law Questions
When salary is based on 40 hr wk + call, shall employee get
When salary is based on 40 hr wk + call, shall employee get paid for call hours? … read more
John
John
Employment Lawyer
Doctoral Degree
3,912 satisfied customers
I just found out last oct. that I had a pension plan and
I just found out last oct. that I had a pension plan and would br retroactive as of last august, now they are saying it wont be retroactive cause I didn't sign a paper, but they told me not to send it… read more
Law Educator, Esq.
Law Educator, Esq.
Attorney
121,010 satisfied customers
I was previously employed as an Account Manager, salary was
I was previously employed as an Account Manager, salary was $28,000 / yr, I crushed my quota for the year, coming in well over 100% for the year. In April of 2017, my wages were reduced from $28,000, … read more
Legal Eagle
Legal Eagle
Attorney
Doctoral Degree
7,317 satisfied customers
I was wrongfully terminated with wages withheld after many
I was wrongfully terminated with wages withheld after many years of workplace harassment, discrimination and bullying. I live in NY, what are my legal rights? … read more
Infolawyer
Infolawyer
Lawyer
Doctoral Degree
12,054 satisfied customers
If you're on Salary, how many hrs. are you required to work
If you're on Salary, how many hrs. are you required to work weekly ? … read more
ScottyMacEsq
ScottyMacEsq
Doctoral Degree
17,290 satisfied customers
Can a union pension plan take away your pension payments if
Can a union pension plan take away your pension payments if you go back to work for someone else at 66 years of age. … read more
Dwayne B.
Dwayne B.
Juris Doctor
28,688 satisfied customers
The FLSA requires employers to track hours worked by all
The FLSA requires employers to track hours worked by all employees, exempt or non-exempt. The FLSA mandates also that an "exempt employee's pay cannot be affected by the hours the employee works must … read more
Infolawyer
Infolawyer
Lawyer
Doctoral Degree
12,054 satisfied customers
An employee was hired for a healthcare salaried position for
An employee was hired for a healthcare salaried position for $60,000 per yr. Salaried position stated employee is expected to work 50 hour work week. Employee took off one day and was paid for 72 hour… read more
Legal Eagle
Legal Eagle
Attorney
Doctoral Degree
7,317 satisfied customers
My pay status was changed from an hourly wage to salaried
My pay status was changed from an hourly wage to salaried over 6 weeks ago. My paper trail with company proves that I have never worked a forty hour week. I am expected to cover any and all shift that… read more
Gerald, Esq
Gerald, Esq
Juris Doctor
3,182 satisfied customers
Can a fully exempt salaried management employee be docked on
Can a fully exempt salaried management employee be docked on an hourly basis? … read more
Law Educator, Esq.
Law Educator, Esq.
Attorney
121,010 satisfied customers
I have a question about pension plan I worked for Bank of
I have a question about pension plan I worked for Bank of America for 25years, we had a 401k to help with our retirement. Bank of America were doing layoff back in late 90s .I was told that I had rece… read more
socrateaser
socrateaser
1,031 satisfied customers
If a person is an executive, non-union, not hourly wage
If a person is an executive, non-union, not hourly wage earner, are there labor laws to govern how many hours worked and if that executive has no right to take sick days? … read more
ScottyMacEsq
ScottyMacEsq
Doctoral Degree
17,290 satisfied customers
I just became salary and would like to know if what my
Hello! I just became salary and would like to know if what my employer is doing is lega. … read more
Roy Hadavi
Roy Hadavi
Attorney
Juris Doctorate
980 satisfied customers
Although there is a Federal minimum wage on salaried
Although there is a Federal minimum wage on salaried employees. Does the law apply in the state of Texas? … read more
Infolawyer
Infolawyer
Lawyer
Doctoral Degree
12,054 satisfied customers
Can an employer withhold pay if an employee does not give
Hi. Can an employer withhold pay if an employee does not give the 2 week notice required? … read more
LegalPro54
LegalPro54
Doctoral Degree
1,258 satisfied customers
When an employer is served with a labor dispute for unpaid
Pearl, when an employer is served with a labor dispute for unpaid mileage report and expense can the employer respond back requesting the back up receipts and mileage report? … read more
LawTalk
LawTalk
Attorney at Law
Juris Doctor
128 satisfied customers
I have been reclassified from a salary position to a wage
I have been reclassified from a salary position to a wage position. Can my pay be decreased for this? The salary position was defined as such so that the employer could have me work hours for which he… read more
Legal Eagle
Legal Eagle
Attorney
Doctoral Degree
7,317 satisfied customers
I have a State wage and hour or labor law question relating
I have a Washington State wage and hour or labor law question relating to notifying employees about tip pooling/tip sharing? The question is do we need to provide our tip pooling/tip sharing policy in… read more
RobertJDFL
RobertJDFL
Attorney
Juris Doctorate
5 satisfied customers

DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

Show MoreShow Less

Ask Your Question

x