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Patrick, Esq.
Patrick, Esq., Lawyer
Category: Employment Law
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Experience:  Significant experience in all areas of employment law.
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I am the only employee doing yard work. My boss pays by

Customer Question

I am the only employee doing yard work. My boss pays by check but does not take out any taxes. I am paid $400 a week. Some weeks I work more than 40 hours, other weeks I work less than 40 hours. Is this arrangement legal?
Submitted: 1 year ago.
Category: Employment Law
Expert:  Patrick, Esq. replied 1 year ago.

Hello and thank you for entrusting me to assist you. My name is ***** ***** I will do everything I can to answer your question.

There is nothing inherently unlawful about the number of hours you work in a week fluctuating. However, assuming you are an employee and not an independent contractor, this is just about the only thing you describe which ISN'T against the law. Everything else you describe suggests multiple legal violations. First, assuming you are an employee, your employer absolutely must pay you all your earned wages within 72 hours of when you gave notice of your intent to quit. If they fail to do that, penalties will accrue on top of the money they actually owe you.

Assuming you are an employee, it is also against the law not to make the appropriate withholdings from taxes on your paychecks and to fail to pay payroll taxes on your behalf. Lastly, if you are an employee working more than 40 hours in a work week, you are entitled to overtime.

You will notice that I prefaced everything by "assuming that you are an employee." If you are a contractor, you are still entitled to be paid for your work, but none of the laws governing the timely payment of final wages, withholdings or overtime will apply to you. The good news, though, is that you are not an independent contractor simply because your employer has decided that is what you will be. If it were that easy to avoid complying with employment laws, everyone would be an independent contractor. This is not how the law functions. In reality, proper classification is entirely a function of the dynamic of the employment relationship itself and no "choice" is involved.

Generally speaking, a worker will be properly classified as an employee if the person to whom service is rendered retains significant control over the manner and means by which the work is performed. This, ultimately, is the relevant inquiry. Factors frequently taken into consideration when making this determination include the following:

1. Whether the person performing services is engaged in an occupation or business distinct from that of the principal;
2. Whether or not the work is a part of the regular business of the principal or alleged employer;
3. Whether the principal or the worker supplies the instrumentalities, tools, and the place for the person doing the work;
4. The alleged employee’s investment in the equipment or materials required by his or her task or his or her employment of helpers;
5. Whether the service rendered requires a special skill;
6. The kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the principal or by a specialist without supervision;
7. The alleged employee’s opportunity for profit or loss depending on his or her managerial skill;
8. The length of time for which the services are to be performed;
9. The degree of permanence of the working relationship;
10. The method of payment, whether by time or by the job; and
11. Whether or not the parties believe they are creating an employer-employee relationship may have some bearing on the question, but is not determinative since this is a question of law based on objective tests. See here for more information.

If you believe that you were misclassified as a contractor and should have been an employee, you can file a wage claim with the Department of Labor Standards Enforcement--a free administrative claims process available only to "employees." Via the wage claim, you can recover penalties for the failure to timely pay your final wages, overtime, and perhaps more.

If you are a contractor, you can still pursue a claim for failure to pay your last day of wages, but you cannot file a wage claim, which is an administrative process available only to employees. Thus, you will need to file a lawsuit in small claims court. The DLSE is equipped to determine whether a worker was misclassified as a contractor, so the best course of action would typically be to file a wage claim first. If it is dismissed on the ground that you were properly classified as a contractor, you can still typically pursue a small claims lawsuit at that point in time.

I hope that you find this information helpful. Please do not hesitate to let me know if you have any questions or concerns regarding the above and I will be more than happy to assist you further.

If you do not require any further assistance, please be so kind as to provide a positive rating of my service so that I may receive credit for assisting you. Very best wishes moving forward.