Not paid to ride ferry to work. Is this wage theft?

Florida. My sister just lost a job working for a resort on a remote island that can only be accessed by ferry. The only thing on this island is the resort. No one lives there. The 1% and celebrities stay there because it’s so secluded and private.

Long story short, the resort is under new management. The old management would clock employees in when they got on the ferry. It’s over 30 minute ride. The new management clocks them in when they reach the island.

Here’s my issue with that. When they ride the ferry they are expected to be “on” with the customers. Customers will often ask them questions. Ask to have their photo taken. Etc. they are expected to sit there with their hands on their lap and not on their phones. If anyone ever complains about their decorum on the ferry they would be written up.

Is this wage theft? Shouldn’t they be clocked in on the ferry? It seems like management is trying to have it both ways.

Jobadvisor

This situation sounds like it could definitely be considered wage theft under Florida and federal labor laws. Here's why, and what your sister might consider doing:

Key Arguments for Wage Theft:

• "Engaged to Wait" / "Suffered or Permitted to Work": The Fair Labor Standards Act (FLSA), which Florida generally follows, requires employers to pay for all hours an employee is "suffered or permitted to work." If your sister and other employees are required to be "on" with customers, not on their phones, and could be written up for their decorum, they are essentially performing work-related duties. Even if they're not actively serving, being "on" and under the employer's control (subject to disciplinary action) during that time usually qualifies as compensable work.
• Employer's Benefit: The employer benefits directly from employees being "on" and available to customers during the ferry ride. This isn't just a commute; it's an extension of the work environment.
• Change in Policy: The fact that the old management clocked them in on the ferry further supports the argument that this time was historically recognized as work time. The new management's change in policy without a corresponding change in expectations (i.e., still expecting them to be "on" with customers) strengthens the claim that they are trying to avoid paying for actual work.
• Required Travel as Part of Principal Activity: While normal home-to-work travel is generally not compensable, if the travel itself is an integral and indispensable part of the employee's principal activities, or if employees are required to perform duties during that travel, it becomes compensable. Being expected to interact with guests and maintain professional decorum clearly falls into this category.

What your sister can do:

1. Document Everything:

   • Keep a detailed log: Dates, times of ferry departure and arrival, duration of the ferry ride, specific instances of customer interaction or disciplinary actions related to decorum on the ferry.
   • Gather evidence of expectations: Any written policies (new or old), emails, or memos from management regarding conduct on the ferry. If anyone was written up for decorum on the ferry, copies of those write-ups would be very helpful.
   • Witnesses: Other employees who are also affected by this policy.

2. Internal Communication (if comfortable and safe):

   • She could try to address this with HR or management, in writing, clearly stating her understanding of the expectations on the ferry and asking for clarification on why this time is no longer compensated when the expectations remain. This creates a paper trail.

3. File a Wage Claim:

   • U.S. Department of Labor (DOL) Wage and Hour Division: This is the federal agency responsible for enforcing the FLSA. They can investigate claims of unpaid wages.
   • Florida Department of Economic Opportunity (DEO) or similar state labor agency: While Florida's state labor laws often mirror federal ones, it's worth checking if there's a state-level wage claim process.

4. Consult with an Employment Lawyer: Many employment lawyers offer free initial consultations. They can assess the specific facts of her case, explain her rights, and help her pursue a claim if warranted. This is often the most effective route, especially if the employer is resistant.

Important Considerations:

• Retaliation is illegal: It is illegal for an employer to retaliate against an employee for exercising their rights under wage and hour laws (e.g., complaining about unpaid wages, filing a claim). If she faces any negative action after raising this issue, she should document it immediately.
• Statute of Limitations: There are deadlines for filing wage claims (statutes of limitations). In Florida, it's generally four years for unpaid wages, and five years if the violation was willful. It's always best to act promptly.

Given the clear expectation of being "on" and subject to company rules on the ferry, it strongly suggests this time should be compensable.

Contract work for low pay. Is it worth it?

I recently started working for a small local business that hired me at a contract worker. I took the job because the hours worked with my class schedule, and it’s doing something I have great interest and am very knowledgeable in, and I just needed some extra cash. The pay isn’t great, $17 hr but I’m reaching the one month trial period in which it was discussed that we can reevaluate pay moving forward.

It does kinda bothers me that all of their workforce are contract workers because it just shows that they don’t want do the work of running a business by the book, or provide benefits or pay my taxes, or contribute to my social security. They say I can deduct business expenses but there really aren’t any business expenses involved in the position, so that amount will be minimal.

I’ve don’t some research into contract workers rights and I want to make sure I’m getting all the leverage I can out of this arrangement because I don’t want to get screwed over. I want to know what are the benefits of working in the position?

A few things to take note of.

1. I have no contract which I understand I have the right to require if I’m doing this kind of work. Should I ask for a contract and what would be the conditions of that contract?

2. It’s a physical job so it is concerning that there is no availability for workman’s comp should I hurt myself on the job.

3. Since they are not matching my social security contributions, the $17 I am paid is really less then what a comparable job from an employer would pay.

4. I’m being told to not help customers but part of the reason they said contract work would benefit me is that I would be able to get clients for outside work, so by not helping customers, I’m not able to build relationships to make that happen.

Today I was told I couldn’t wear headphones while working in the back behind the scenes. I put my foot down and said, that wasn’t going to fly because as I understand it, they can’t tell me how to do my job since I am not working for them, I’m hired by them for my expertise. I don’t think they were expecting me to say that but brushed it off, and the subject was dropped.

Lastly, they happen to be conservatives who support the current administration which is their prerogative. I just find it so fitting that they are against Medicaid (which I am on) yet they align their company so that their contract workers can’t afford private insurance and run their business in such a way that they avoid having to pay any benefits. Tell me, it this job even worth it, or am I just wasting my time?

The thing is I do like the job but there is some really scummy things about how they are doing business and I just need some advice on how I should approach this one month progress meeting. Should I ask for a contract and more pay? I’m really good at the job I do, I have a lot of knowledge in the product we sell, am a hard worker, the only bilingual worker there, and am very professional. I feel I am worth far more than what they pay me but I also understand that it’s not the type of job that requires much. I know I can make them a lot of money but only if it is worth it for me to do so. So what do you guys think I should do? Any advice appreciated, and thanks for reading this long post.

Jobadvisor

It sounds like you're in a tricky situation, and it's smart that you're looking into your rights and options. Let's break down your concerns and explore what you can do.

Understanding Your Classification: Employee vs. Independent Contractor

Your core issue revolves around whether you are correctly classified as an independent contractor. Many of the problems you're experiencing (no benefits, no worker's comp, no social security matching, being told how to do your job) strongly suggest you might be misclassified as an independent contractor when you should be an employee.

Here's a general overview of the differences, which can vary by jurisdiction:

• Behavioral Control: An employer has the right to direct and control how the worker does the work. An independent contractor generally controls how they perform the work. Your employer telling you not to help customers and dictating whether you can wear headphones points towards behavioral control, suggesting an employer-employee relationship.
• Financial Control: An employer typically provides tools, equipment, and pays for expenses. An independent contractor often has a significant investment in equipment, can incur unreimbursed expenses, and can realize a profit or loss. The fact that you have minimal business expenses suggests less financial risk for you, which points to an employee relationship.
• Type of Relationship: An employer-employee relationship often implies permanence and benefits. An independent contractor relationship is often for a specific project or period, and there's no expectation of ongoing work or benefits. The fact that this is ongoing work central to their business operations also leans towards an employee relationship.

Why does this matter? If you are misclassified, the business could face significant penalties from the IRS and state labor departments, and you would be entitled to employee benefits and protections, including:

• Minimum wage and overtime pay
• Worker's compensation
• Unemployment insurance
• Employer contributions to Social Security and Medicare taxes (you're currently paying both the employer and employee portions as a self-employed individual)
• Eligibility for employer-sponsored benefits like health insurance, paid time off, etc.

Addressing Your Specific Concerns and Questions:

1. "No availability for workman’s comp should I hurt myself on the job." This is a major red flag. If you are injured on the job and are truly an independent contractor, you generally are not covered by worker's compensation. If you are misclassified, you should be covered. This alone is a serious risk.

2. "Since they are not matching my social security contributions, the $17 I am paid is really less than what a comparable job from an employer would pay." You are absolutely correct. As an independent contractor, you are responsible for the entire Self-Employment Tax, which includes both the employer and employee portions of Social Security and Medicare taxes (15.3% on your net earnings up to the Social Security wage base, and 2.9% for Medicare on all net earnings). An employer would pay half of these taxes. So, your effective hourly rate is indeed lower.

3. "I have no contract which I understand I have the right to require if I’m doing this kind of work. Should I ask for a contract and what would be the conditions of that contract?" While having a contract can define the terms of an independent contractor relationship, the absence of one doesn't automatically make you an employee. However, it does leave a lot of ambiguity.

• Should you ask for a contract? Yes, especially if you want to clarify the terms of your engagement. However, be aware that a contract that labels you an independent contractor doesn't necessarily make you one in the eyes of the law if the actual working relationship points otherwise.
• Conditions for a contract (if you are truly an independent contractor):
  • Scope of Work: Clearly define the specific services you will provide.
  • Deliverables: What are the expected outcomes or results?
  • Payment Terms: How and when you will be paid.
  • Term of Agreement: The start and end dates, or if it's project-based.
  • Independent Contractor Clause: A clause stating you are an independent contractor, responsible for your own taxes, insurance, etc. (even though this won't protect them from misclassification).
  • Control Language: Language that emphasizes your control over the means and methods of your work, not theirs. For example, "Contractor will determine the schedule and methods necessary to complete the agreed-upon services."
  • Indemnification: You might be asked to indemnify them for certain liabilities.
  • Termination Clause: How either party can end the agreement.
  • No Benefits Clause: Explicitly stating you are not entitled to employee benefits.

4. "I’m being told to not help customers but part of the reason they said contract work would benefit me is that I would be able to get clients for outside work, so by not helping customers, I’m not able to build relationships to make that happen." This is a direct contradiction and limits your ability to operate as a true independent contractor who would typically be free to seek out their own clients and opportunities. This also points to a level of control over your work that is more indicative of an employee.

5. "Today I was told I couldn’t wear headphones while working in the back behind the scenes. I put my foot down and said, that wasn’t going to fly because as I understand it, they can’t tell me how to do my job since I am not working for them, I’m hired by them for my expertise." You are absolutely correct in your understanding of independent contractor control. Their attempt to dictate how you perform your work (like wearing headphones) is strong evidence that you are being treated as an employee, not a contractor. Your standing your ground was appropriate in that context.

6. "The political views and their business practices." While their political views are their prerogative, it's certainly frustrating when their business practices seem to exploit loopholes or avoid responsibilities, especially regarding worker welfare. This reinforces your feeling of being taken advantage of.

Benefits of Your Current Position (if you are truly an independent contractor):

Honestly, based on what you've described, the benefits of being an independent contractor in this specific arrangement are minimal, and the downsides are significant.

• Flexibility (which they are limiting): You mentioned the hours work with your class schedule. This is a common benefit of contract work. However, their attempts to control your work (headphones, not helping customers) reduce this flexibility.
• Potential for higher pay (not in your case): True independent contractors often command higher rates to compensate for the lack of benefits and self-employment taxes. Your $17/hour is not a "contractor rate" when considering the tax burden and lack of benefits.
• Deducting business expenses (minimal for you): You correctly noted that your expenses are minimal, so this benefit is largely moot for you.
• Autonomy (which they are undermining): The freedom to control how and when you work. As you've experienced, they are chipping away at this.

In your specific situation, the "benefits" they advertised ("able to get clients for outside work") are being actively prevented by their instructions.

Is this job worth it, or are you just wasting your time?

This is the million-dollar question, and it depends on your priorities and risk tolerance.

Reasons it might be worth it (short-term):

• Extra cash for now: You needed cash, and you're getting it.
• Interest and knowledge: You enjoy the work and are good at it.
• Experience: It's a line on your resume and practical experience.
• Networking: Even without direct customer interaction, you might still meet people or learn about the industry.

Reasons it might NOT be worth it (long-term):

• Misclassification risk: This is the biggest concern. You are shouldering tax burdens and risks (like injury) that an employer should be.
• Low effective pay: $17/hr is low, especially once you account for self-employment taxes and the lack of benefits.
• Lack of benefits: No worker's comp, no health insurance, no paid time off, no unemployment insurance.
• Limited growth/opportunity: If they're preventing you from building clients, the long-term benefit of contract work is negated.
• Feeling exploited: This can lead to burnout and resentment.
• Unprofessional business practices: A sign that they may not be reliable or fair in other aspects.

How to Approach the One-Month Progress Meeting:

This meeting is your opportunity to advocate for yourself. Go in prepared and professional.

1. Your Goal: You want to be properly compensated and protected. This might mean: * Being reclassified as an employee with all the accompanying benefits and protections. * A significantly higher hourly rate as a true independent contractor to offset your increased tax burden and lack of benefits, along with a clear understanding that they will not control how you do your work.

2. Gather Your Evidence: * Hours worked: Keep meticulous records. * Tasks performed: Document your responsibilities. * Instances of control: Note down when they've told you how to do your job (headphones, not helping customers). * Your value: List your skills, bilingualism, hard work, professionalism, and how you can make them money. * Research: Be ready to reference general independent contractor guidelines if needed.

3. During the Meeting - Your Strategy:

• Start Positive but Firm: "I've really enjoyed my first month here, and I'm highly engaged with the work. I believe I bring a lot of value with my knowledge, hard work, and bilingual skills, and I'm confident I can help the business grow significantly."

• Address the Independent Contractor Status Directly: "Regarding my classification as an independent contractor, I've been doing some research to ensure I'm meeting all my obligations, and it's brought up some questions about the nature of our arrangement. For example, I understand that as an independent contractor, I'm typically responsible for determining the methods and means of how I complete my work, such as choosing whether or not to wear headphones, and I'm usually free to market my services to other clients, which the current guidance about not helping customers prevents me from doing."

• Highlight the Financial Impact: "Also, as an independent contractor, I'm responsible for paying the full self-employment tax, which means my effective hourly rate of $17 is significantly lower than what an employee earning the same wage would take home, as an employer typically contributes half of those taxes. Additionally, there are no provisions for worker's compensation, which is a concern given the physical nature of the job."

• Present Your Options/Requests (Choose ONE main path):

  Option A: Request Reclassification as an Employee (Strongest position for you) "Given these factors, and my desire for a long-term, stable working relationship, I believe it would be more appropriate and mutually beneficial for me to be classified as an employee. As an employee, I would be covered by worker's compensation, receive employer contributions to Social Security and Medicare, and be eligible for any other benefits the company offers. With my contributions, I would expect a starting hourly wage of [X, consider what a fair employee wage would be before your tax burden] as an employee."

  Option B: Request a Significantly Higher Rate as a True Independent Contractor (If Option A is rejected or not desired) "If the company wishes to maintain my independent contractor status, then to truly reflect the market rate for a contractor who takes on all the associated risks, taxes, and lack of benefits, I would need my hourly rate to be [Y, this needs to be significantly higher than $17 to compensate for self-employment tax, lack of benefits, etc. - aim for something that makes sense given the industry and your skills, perhaps $25-$30+ to start, depending on local rates and your value]. Furthermore, it would be essential for me to operate with the autonomy of a true contractor, which includes the freedom to determine my work methods and to engage with customers to build my own client base."

  Option C: Request a Formal Contract (if they are hesitant on classification/pay immediately) "Regardless of classification, I would also like to formalize our agreement with a written contract. This would provide clarity for both parties regarding the scope of work, payment terms, and expectations moving forward." (Be ready to discuss what you'd want in this contract, as outlined above).

• Emphasize Your Value: Throughout the discussion, reiterate your strengths and how you contribute to their business success. "I'm genuinely passionate about this work and believe my skills are a significant asset. I'm confident I can help increase sales/efficiency/customer satisfaction if we can align on a fair and legally sound working arrangement."

• Be Prepared for Pushback: They might resist, try to downplay your concerns, or even try to explain why you are "correctly" classified. Don't argue, but gently reiterate your points based on legal definitions. They might say they can't afford it.

• Know Your Walk-Away Point: What's the absolute minimum you'd accept to stay? If they don't meet it, be prepared to look for other opportunities.

Regarding the political aspect: While it's frustrating, try to keep the meeting focused on your employment terms and legal classification, rather than their personal politics. It dilutes your professional argument.

Next Steps If They Don't Cooperate:

If they refuse to reclassify you or offer a truly compensatory rate as a contractor, you have a few options:

1. Seek New Employment: Start actively looking for a job that offers fair pay, benefits, and proper classification.
2. Report Misclassification: If you believe you are genuinely misclassified, you can file a Form SS-8, Determination of Worker Status for Purposes of Federal Employment Taxes and Income Tax Withholding, with the IRS. Your state labor department might also have a similar process. This is a serious step and can trigger an audit of the business. Be prepared for potential consequences for your working relationship.
3. Consult with an Attorney: If you're serious about pursuing misclassification, consult with an employment law attorney in your area. They can advise you on the specific laws in your state and your best course of action.

Conclusion:

You're not wasting your time by addressing this. You're being proactive about your rights and financial well-being. This job, as currently structured, offers you very little in terms of benefits and long-term security, especially when you factor in the true cost of being an independent contractor.

The fact that you like the work and are good at it is a valuable asset, but it doesn't mean you should accept being exploited. Use your strong performance and knowledge as leverage to negotiate for a fair and legally sound working arrangement. Good luck!