is this employment situation legal?
October 29, 2015 12:54 PM Subscribe
Wife works (just started) as a therapist 15 hours a week at a multidisciplinary center that provides mental health services. They have an unusual policy about compensation for their contractors.
She is an independent contractor. None of the clients are hers; the center schedules her to meet with clients and when to meet them...at the center. She has specific hours she need to be at the center as determined by the center (Ex. 2-8 pm). Just this week she was told that they do not pay the therapists if a client cancels or doesn't show up. Wife obviously disagrees. Asked collegues and they said, "Yeah, that's how it works.." Could this in any way be legal?
She is an independent contractor. None of the clients are hers; the center schedules her to meet with clients and when to meet them...at the center. She has specific hours she need to be at the center as determined by the center (Ex. 2-8 pm). Just this week she was told that they do not pay the therapists if a client cancels or doesn't show up. Wife obviously disagrees. Asked collegues and they said, "Yeah, that's how it works.." Could this in any way be legal?
Could this in any way be legal?
Maybe. Maybe not. The only way to know for sure is to talk to an attorney who practices employment law in your state.
posted by John Borrowman at 1:00 PM on October 29, 2015 [5 favorites]
Maybe. Maybe not. The only way to know for sure is to talk to an attorney who practices employment law in your state.
posted by John Borrowman at 1:00 PM on October 29, 2015 [5 favorites]
Could this in any way be legal?
The thing about the law is that it doesn't really matter if something is legal or not, it only matters if you are willing to take your employer to court and win in court. Government enforcement of employment law is so close to non-existent that it doesn't really enter the question.
Independent contractors are not required to be paid an hourly wage. The employment agreement for an independent contractor is negotiated between the employer and the contractor and in general, does not have to fulfill any particular government criteria. Hence, if she agreed to it and she is an independent contractor, the employment arrangement is generally legal.
First, there are two questions you need to answer:
She should consider finding a new job. In general, I think it is a good idea to work cooperatively with your employer rather than fighting an employer in court. A combative employer-employee relationship is not healthy for either party. She may very well be forced into such an arrangement, which is unfortunate, but if you are in a scenario where you have alternative employment prospects, she could consider exploring them.
posted by saeculorum at 1:17 PM on October 29, 2015 [6 favorites]
The thing about the law is that it doesn't really matter if something is legal or not, it only matters if you are willing to take your employer to court and win in court. Government enforcement of employment law is so close to non-existent that it doesn't really enter the question.
Independent contractors are not required to be paid an hourly wage. The employment agreement for an independent contractor is negotiated between the employer and the contractor and in general, does not have to fulfill any particular government criteria. Hence, if she agreed to it and she is an independent contractor, the employment arrangement is generally legal.
First, there are two questions you need to answer:
- Is your wife appropriately categorized as an independent contractor? There are only general principles for making the determination, and there is no way for any of us to suggest which way the law falls based on your limited description of her job.
- Did your wife agree to this arrangement? It seems odd she "just found out" about this - it should be quite explicitly laid out in her employment agreement, and she should have quite explicitly agreed to it when she signed a contract with the center. This is not a question of "how it works", it's a question of what the agreement is. The agreement is binding here, not "how it works.".
She should consider finding a new job. In general, I think it is a good idea to work cooperatively with your employer rather than fighting an employer in court. A combative employer-employee relationship is not healthy for either party. She may very well be forced into such an arrangement, which is unfortunate, but if you are in a scenario where you have alternative employment prospects, she could consider exploring them.
posted by saeculorum at 1:17 PM on October 29, 2015 [6 favorites]
I'm sure it could be legal, but if the employer is requiring her presence at specific hours, that sounds to me like she's an employee. Call your department of labor.
posted by disconnect at 1:17 PM on October 29, 2015 [6 favorites]
posted by disconnect at 1:17 PM on October 29, 2015 [6 favorites]
You'll have to check in your jurisdiction but probably, if they're doing it. You can do just about anything you want to a 1099 contractor.
It is true that they might fall afoul of "you can't do X and pay them 1099" requirements, buuuut the "exemptions" for professionals (as in, completed a specific educational requirement for licensure or certification, or almost any kind of IT work) provide a pretty awful loophole for this.
posted by Lyn Never at 1:20 PM on October 29, 2015
It is true that they might fall afoul of "you can't do X and pay them 1099" requirements, buuuut the "exemptions" for professionals (as in, completed a specific educational requirement for licensure or certification, or almost any kind of IT work) provide a pretty awful loophole for this.
posted by Lyn Never at 1:20 PM on October 29, 2015
You can do just about anything you want to a 1099 contractor.
This is actually not true, at least not where I am. If the employer sets the schedule and tells you where to be and what to do when you're there (as it sounds like they are doing in this case, booking her appointments and requiring her to be in a certain place at certain times), she would be considered an employee. You should speak to an employment lawyer in your state.
posted by something something at 1:28 PM on October 29, 2015 [1 favorite]
This is actually not true, at least not where I am. If the employer sets the schedule and tells you where to be and what to do when you're there (as it sounds like they are doing in this case, booking her appointments and requiring her to be in a certain place at certain times), she would be considered an employee. You should speak to an employment lawyer in your state.
posted by something something at 1:28 PM on October 29, 2015 [1 favorite]
Response by poster: Quick follow up: She was given a schedule of her work hours and days, so she was not given an opportunity to schedule them on her own. Effectively, she is being mandated to sit at a worksite, on-call, unpaid, unless there is work to do.
There was no contract. They just told her we're going to start you at 15 hours per week and then proceeded to tell her what those hours are. Sounds like an employee to me. May be time to get a new gig.
posted by teg4rvn at 1:28 PM on October 29, 2015
There was no contract. They just told her we're going to start you at 15 hours per week and then proceeded to tell her what those hours are. Sounds like an employee to me. May be time to get a new gig.
posted by teg4rvn at 1:28 PM on October 29, 2015
May be time to get a new gig.
In the future, get an employment agreement that specifies how you will be paid before accepting a position.
posted by saeculorum at 1:50 PM on October 29, 2015
In the future, get an employment agreement that specifies how you will be paid before accepting a position.
posted by saeculorum at 1:50 PM on October 29, 2015
I'm a Social Work student. So, in school to be a therapist. My understanding is that not getting paid for no-shows is normal for fee-for-service therapist jobs (which is why my professors warn us about taking them). As to the legality... No idea.
posted by sometamegazelle at 2:17 PM on October 29, 2015 [3 favorites]
posted by sometamegazelle at 2:17 PM on October 29, 2015 [3 favorites]
Your state has a labor practices office - probably under the Attorney General's website. Call and talk to them about it. Lots of businesses and organizations skirt employment law, and it's really not okay.
posted by theora55 at 3:04 PM on October 29, 2015
posted by theora55 at 3:04 PM on October 29, 2015
With regard to contractor/employee classification, I found this bit on Fair Measure.
Is it illegal to make Saturday work mandatory for a contractor?
Q. Someone stated it was illegal to have a “mandatory Saturday” workday. All our workers are subcontractors and properly covered on a 1099. I just want some clarification, please. I cannot find anything in all my reading about a subcontractor not having to work over 40 hours a week, or on Saturday, or without overtime pay. Thanks.
A. Contractors are not employees, so they are not covered by labor or employment laws. Unless it violates the terms of your contract with them, you can required contractors to work wherever and whenever you want.
But be sure the workers are truly independent contractors! The IRS and state tax authorities have been cracking down on the misclassification of employees as independent contractors, and the fines and penalties can be substantial.
Although Peak Technical says:
Other indications that your contractor may be classified by the government as an employee include workers who:
must adhere to an organization-mandated schedule and/or work on the organization’s premises;
Definitely seems to be conflicting information out there. Sounds like employment attorney and/or a new gig is going to be the way to go.
posted by Beti at 3:29 PM on October 29, 2015
Is it illegal to make Saturday work mandatory for a contractor?
Q. Someone stated it was illegal to have a “mandatory Saturday” workday. All our workers are subcontractors and properly covered on a 1099. I just want some clarification, please. I cannot find anything in all my reading about a subcontractor not having to work over 40 hours a week, or on Saturday, or without overtime pay. Thanks.
A. Contractors are not employees, so they are not covered by labor or employment laws. Unless it violates the terms of your contract with them, you can required contractors to work wherever and whenever you want.
But be sure the workers are truly independent contractors! The IRS and state tax authorities have been cracking down on the misclassification of employees as independent contractors, and the fines and penalties can be substantial.
Although Peak Technical says:
Other indications that your contractor may be classified by the government as an employee include workers who:
must adhere to an organization-mandated schedule and/or work on the organization’s premises;
Definitely seems to be conflicting information out there. Sounds like employment attorney and/or a new gig is going to be the way to go.
posted by Beti at 3:29 PM on October 29, 2015
You could consult official government sources for general information:
posted by Little Dawn at 4:23 PM on October 29, 2015 [1 favorite]
Employers oftentimes improperly classify their employees as independent contractors so that they, the employer, do not have to pay payroll taxes, the minimum wage or overtime, comply with other wage and hour law requirements such as providing meal periods and rest breaks, or reimburse their workers for business expenses incurred in performing their jobs. Additionally, employers do not have to cover independent contractors under workers’ compensation insurance, and are not liable for payments under unemployment insurance, disability insurance, or social security. [...]And it sounds like a consultation with an attorney [MeFi Wiki] could be helpful, so you can better understand the government agencies involved with enforcement of labor laws.
There is a rebuttable presumption that where a worker performs services that require a license pursuant to Business and Professions Code Section 7000, et seq., or performs services for a person who is required to obtain such a license, the worker is an employee and not an independent contractor. Labor Code Section 2750.5
posted by Little Dawn at 4:23 PM on October 29, 2015 [1 favorite]
As far as I know that's the status quo for that kind of position. These jobs are often titled fee-for-service for a reason-- if you do a service, you get paid; no service, no fee. I've never worked in that environment but I'd imagine that if a client no-showed you would probably use the time to catch up on paperwork rather than take a break.
Clinics like this can afford to be stingy with benefits because they can be an very attractive setting to work in-- they offer flexible hours and guarantee the ability for master's level clinicians to get hours towards their license to practice independently. I have heard of clinics that offer things like guaranteed pay for all hours in the office for X weeks or working actively to make sure that your caseload stays filled, so I would say your wife's job sounds pretty meh. Salaried positions for therapists in clinics seem to be less common (at least where I live) so I would say if she starts looking for other positions to keep that in mind and ask a lot more during the interview process about how they handle these things.
posted by fox problems at 4:44 PM on October 29, 2015
Clinics like this can afford to be stingy with benefits because they can be an very attractive setting to work in-- they offer flexible hours and guarantee the ability for master's level clinicians to get hours towards their license to practice independently. I have heard of clinics that offer things like guaranteed pay for all hours in the office for X weeks or working actively to make sure that your caseload stays filled, so I would say your wife's job sounds pretty meh. Salaried positions for therapists in clinics seem to be less common (at least where I live) so I would say if she starts looking for other positions to keep that in mind and ask a lot more during the interview process about how they handle these things.
posted by fox problems at 4:44 PM on October 29, 2015
You are getting a lot of bad information in this thread.
IANAL but I have had to deal with contractor/employee issues through my work. It is very possible that the company is miscategorizing its employees as contractors. If so that is a violation of the law. You can find out by talking with an attorney -- many will have an initial conversation with you free -- or perhaps by checking with the appropriate state office.
In Massachusetts the key test is whether you are engaging in the primary function of the business. In your case it sounds like your wife is. Of course there are exceptions and these laws vary from state to state. That is why you need to check with the someone local who understands the local law.
If the company is breaking the law your wife has a couple of choices -- she can suck it up and do the work under these unfair conditions, or she can report the company to the state authorities. In Massachusetts both the Department of Revenue and the Executive Office of Labor and Development could be interested.
posted by alms at 7:58 AM on October 30, 2015 [1 favorite]
IANAL but I have had to deal with contractor/employee issues through my work. It is very possible that the company is miscategorizing its employees as contractors. If so that is a violation of the law. You can find out by talking with an attorney -- many will have an initial conversation with you free -- or perhaps by checking with the appropriate state office.
In Massachusetts the key test is whether you are engaging in the primary function of the business. In your case it sounds like your wife is. Of course there are exceptions and these laws vary from state to state. That is why you need to check with the someone local who understands the local law.
If the company is breaking the law your wife has a couple of choices -- she can suck it up and do the work under these unfair conditions, or she can report the company to the state authorities. In Massachusetts both the Department of Revenue and the Executive Office of Labor and Development could be interested.
posted by alms at 7:58 AM on October 30, 2015 [1 favorite]
Response by poster: Final follow-up: Spouse finally got a chance to speak to a higher up confirming that they only get paid when they see a client. If they don't show up they don't get paid. The counseling is both group and individual and clients are individually scheduled in the hours prior to the group sessions so the counselors are there for 4-6 hours before the group sessions and essentially will get paid for *up to* 4-6 hours prior to the group session that always happens.
Counselors are mandated to attend staff meetings every Wednesday noon for two hours (at an hourly rate less than usual rate, as stipulated by contract) I misspoke earlier about if there were a contract...there is. Counselors are also mandated to write extensive patient notes into a computerized documentation system, but are not paid for that time. Other therapists told spouse that they just see clients for 45 minutes and leave 15 minutes for notes.
Wife asked why upon hire she was given a schedule and was told they were starting at 15 hours per week. The reply was that they could not afford to pay out more than that and that the only money coming in was from insurance reimbursement -- no reimbursement, no pay.
This experience has been devastating to my wife. She left a 25-hour per week job as an independent contractor with the exact same job responsibilities to take this job because it was an opportunity to work with a different type of patient. She got paid for only 6 hours last week.
Lesson learned.
posted by teg4rvn at 7:49 AM on November 12, 2015
Counselors are mandated to attend staff meetings every Wednesday noon for two hours (at an hourly rate less than usual rate, as stipulated by contract) I misspoke earlier about if there were a contract...there is. Counselors are also mandated to write extensive patient notes into a computerized documentation system, but are not paid for that time. Other therapists told spouse that they just see clients for 45 minutes and leave 15 minutes for notes.
Wife asked why upon hire she was given a schedule and was told they were starting at 15 hours per week. The reply was that they could not afford to pay out more than that and that the only money coming in was from insurance reimbursement -- no reimbursement, no pay.
This experience has been devastating to my wife. She left a 25-hour per week job as an independent contractor with the exact same job responsibilities to take this job because it was an opportunity to work with a different type of patient. She got paid for only 6 hours last week.
Lesson learned.
posted by teg4rvn at 7:49 AM on November 12, 2015
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posted by clawsoon at 12:56 PM on October 29, 2015