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Independent Contractor Related Questions

Do independent contractors have rights as per Labor code? Or, can at-will employees be terminated and rehired as independent contractors? Independent contractors are necessarily used based on the job and the parameters that surround the job. A lot rides on the relationship between the employer and the worker. This may bring about various doubts or questions both with the employer and the contractors, which is where Experts can be of assistance with their insights and expertise.

Read below where Experts have answered a few questions related to independent contractors.

Do independent contractors have rights as per the Labor code?

Normally, independent contractors are not protected by the labor code or any of the laws that are specifically meant to protect employees. Even if one of these protections were to be applicable, an independent contractor would not have additional remedies such as ‘harassment’ and ‘discrimination.’ These attributes are against the law when they are motivated by a legally protected trait such as race, religion or gender.

Can independent contractors who are not U.S. citizens get paid bonuses based on the days they work?

This is possible if the invoice payment is based on the amount of work completed rather than relating it to the hours worked. If one wishes to maintain these workers as independent contractors, paying them by the hour would indicate an employee status rather than as an independent contractor. Therefore, it would be better to rework payment as incentive based on productivity rather than quantity of hours. If these contractors are based outside the U.S., there is a possibility for them to claim employment status and sue the employer for being wrongly classified.

Can an at-will employee be terminated and re-hired as an independent contractor?

If both parties agree, it is possible to alter the responsibilities to convert an at will employee to an independent contractor. One is also free to modify the agreement and rehire the entity instead. However, it should be kept in mind that this person should not be showed as an employee but a contractor. This would provide a different scope of control where the duties and liabilities vary. In case the classification of independent contractor and employee has been carried out wrongly by the employer, they can be sued and one can obtain two years of retrospective wages and overtime if proper pay was not received.

For a self-employed person, what determines whether the workers are employees or independent contractors?

One’s status as a self-employed person does not have any legal relevance in the classification of independent contractors. It is the manner in which the employees are treated with respect to their work. If the employer sets their schedule, provides the tools, and things are required to be carried out as per the employer’s methods, this prevents them from being independent contractors and making them more likely employees.

Can the employer draw out a contract requiring independent contractors to be on the work premises for 12 hours?

It is possible for an independent contractor to be asked to remain on premises for 12 hours per day. However, if the person is required to be on site all the time, this more likely leans towards them being employees rather than independent contractors. The employer should ideally render the worker an employee but it is not necessary. To understand this better, there are essentially three elements in the analysis of a contractor and an employee. They are behavioral and financial control and lastly the type of relationship shared between the parties. The relationship would be considered behavioral control by the employer. However, if the contractor had a contractual relationship and the financials were that of a contractor, it is considered legal to ask an independent contractor to work 12 hour days and the contractor status is not lost. Moreover, parties can essentially decide terms as they please as long as it is not illegal.

Can employers let go of independent contractors without contracts?

If the employers have paid the independent contractors properly for the past two years, the company has the right to terminate that relationship at any point they choose unless there is a specific written contract which mentions the contrary.

As seen above, situations can vary with regard to independent contractors. There may be many questions you as an independent contractor or employer may have. The above information is an overview of the type of situation people have experienced. To get more details about your particular problem, seeking help from legal Experts would be a step in the right direction and get quick and economical solutions, from the comfort of your home.

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