Do you think the side hustle platform you’re working through is mistreating you — forcing you into unpaid training, long hours without overtime or simply not paying you for all of the hours you work? This type of mistreatment may suggest that you’ve been “misclassified.” And, if so, you could be due hundreds — maybe even thousands — of dollars in back pay.
The Department of Labor, which enforces minimum wage laws, believes that thousands of companies may be “misclassifying” their employees by calling them “independent contractors.” By doing that, they rob workers of millions of dollars in wages and benefits.
But it’s up to you to determine whether you’ve been “misclassified” or are simply mistreated.
Misclassified?
How do you know? It requires a bit of background to explain. There are essentially two types of workers: (1) people who work for someone else as employees and (2) people who work for themselves as self-employed independent contractors. Employees get job security and reliable pay; but independent contractors get freedom to work when and how they want.
However, thanks to thousands of companies ranging from Lugg and Handy to Fiverr and Rover, that offer work “marketplaces,” the lines between independent contractors and employees have blurred. That’s because some of these marketplaces impose employee-like restrictions on the independent contractors who find jobs through them.
Does that make them employees? That depends.
The Department of Labor will start enforcing new rules in March that aim to delineate who is an employee and who is an independent contractor. It’s a complex, multi-part test. The editors of SideHusl.com created a 25-question quiz based on the upcoming rules that should help you figure out which side of that line you fall on.
It’s important to note that the law delineating who is an employee and who is self-employed is murky. There are no bright lines. But, the higher you score on this quiz, the more likely it is that you’re an employee — not a self-employed independent contractor.
And if that’s the case, you could be due up to two-years worth of lost wages, plus penalties that could double the damages. (See “Your Action Plan” below.)
Scoring
Give yourself four points for every (A) answer; and 0 points for each (B) answer.
The quiz
1. Were you given job training, with an expectation that you would perform future job duties as you were trained to?
(a) yes (b) no
2. Are you penalized if you get your work done effectively, but in a way that deviates from your training?
(a) yes (b) no
3. Are you told where and what times to work?
(a) yes (b) no
4. Are you penalized if you do not show up promptly?
(a) yes (b) no
5. Does the platform have any say over the tools you use for work? In other words, can it decline your application based on the car you drive or the cleaning materials you use?
(a) yes (b) no
Uniforms and supplies
6. Are you required to wear a company uniform/t-shirt or emblem?
(a) yes (b) no
7. Would you be penalized if you did not wear that uniform?
(a) yes (b) no
8. Are you given instruction on where or what to purchase with regard to work-related supplies?
(a) yes (b) no
Evaluations
9. Are you evaluated on your performance?
(a) yes (b) no
10. Are these evaluations based on whether you completed a job successfully, or on whether you completed the job following the company’s guidelines?
(a) how the job was completed — i.e. whether it was completed via company guidelines (b) I’m only evaluated on whether the job was completed successfully or well
11. Do your evaluations have an impact on what the company allows you to do?
(a) yes (b) no
Other work
12. Are you able to seek out other business opportunities with multiple companies, including competitors of the company or companies for whom you work?
(a) no (b) yes
13. Do you, in fact, work with many companies in any given year, with no one company providing the bulk of your income?
(a) no (b) yes
Details
14. Does the company pay your expenses, from tolls and fees to paying for mileage and supplies?
(a) yes (b) no
15. Are you paid by the hour or by the job?
(a) hour (b) job
16. Do you work under a written contract (which could be a site’s “terms and conditions”)?
(a) no (b) yes
17. Is there an anticipated end date for your work arrangement, or are you working for an indefinite period?
(a) indefinite period (b) working until a particular project is completed, though the time could be extended if the project requires more time than anticipated
18. Do you receive any employee benefits, such as health insurance or access to a retirement plan?
(a) yes (b) no
19. Is the service you provide a key element in the company’s business?
(a) yes (b) no
Control
20. Can you turn down assignments without penalty?
(a) no (b) yes
21. Are you given enough information to determine whether a job will be profitable for you?
(a) not necessarily (b) yes. And, if it’s not clear, I can ask
22. Who sets your wages?
(a) the company (b) I set my own rates
23. Can you earn a higher hourly wage by being smart, strategic or efficient about how you complete your work?
(a) not really (b) yes
24. Can you communicate directly with your clients, or must you go through an intermediary at the company through which you work?
(a) I must go through the company to communicate with clients (b) I communicate directly with my clients
25. Do you — or the company — have control over the scope of any given job? This includes services, revisions and the project deadlines.
(a) that’s controlled by the company I work through (b) I negotiate the scope of the work with each client.
Your score
Count your (a) answers and multiply by 4. The closer your total score is to 100, the more likely you are an employee, rather than an independent contractor.
Action plan
If you scored high on this quiz, consider filing a complaint with the Department of Labor. The DOL enforces labor laws and can sue companies that misclassify their workers. In many cases, these suits result in employees receiving back wages. And, if a company has egregious or repeat violations, workers can get up to twice as much as they’re owed in penalties.
Can’t file online? You can reach the Department of Labor by phone at 1-866-4US-WAGE.
Make sure to keep track of all of the hours you’re working to get the full amount you’re due. The Department of Labor offers a smart phone app to make tracking your hours easier here.
2/12/2024
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