Re: Statutory employees - Nick Posted: Dec 16th, 2015 - 6:17 pm In Reply to: For Nick-what about statutory employees? - sm
The first thing I need to be clear about is that I am not an attorney (yet). The Bar Association really frowns on us practicing law without a license! :) That said, I will try as a "civilian" and fellow MT to provide information to help, to give you some tools and thought starters, with the suggestion that you confer, first with the IRS (they are actually very nice people to deal with and very helpful), and if that does not help, possibly the Labor Board. Here is a link that offers advice directly from the IRS:
https://www.irs.gov/Businesses/Small-Businesses-&-Self-Employed/Statutory-Employees
Any attorney would want to review any contract or memorandum of understanding that you signed at the time of hire (or even subsequent to that). I am not a labor law expert (my major area of interest is civil rights/elder and disabled/ and poverty law), but clearly, even to my little non-attorney brain, there is something very wrong here. Have you asked them not to call you before your shift begins? You need to make that request--in writing. Keep a copy. Please, please, please, begin keeping a log. It does not need to be anything fancy. Just buy one of those little lined notebooks you can get at the dollar store. Record the date and time of each call, the name (and position of the person in the company) who called you, and what the request was, i.e.: 12/15/2015: "I was called by Joan, who is a routing clerk, at 10:05 a.m. She asked me to sign on immediately and start working three hours early." Just a sentence like that, each time, each call. If you are without work, i.e. NJA, note what time you ran out and what time work became available again, i.e., "NJA at 3:35 p.m. Working again at 4:35 p.m., etc." Time waiting for work = 1 hour. Print out hard copies of ANY e-mails, nastygrams, written requests, etc. Get one of those manila file folders (we have hundreds of them in the office, too bad I can't throw one over to you), and keep everything you write and everything that is sent to you, your notes, your schedules, etc. in that folder. If your paycheck is direct deposited, make a copy of the paystub and put it in the folder. If it a live check and is mailed to you, photocopy it before you deposit it in the bank. It concerns me that you are having to pay for your own Internet, and that is one question I would bring up with the IRS as well as the Labor Board. This may play a big part in establishing your case. In short, you want to "build your own case"--just a short summary of what has happened and the issues: You are paying for the Internet, you are using your own computer, but especially emphasize that what should be 30 hours has now become 40-50. The issue of OT will also come up. I read of a company some years ago who did this very thing, and it caused some employees to manipulate their OT and--long story short--the company really got roasted and toasted by the Labor Board. When you ask how a company can do these things, here is how it happens: Most MTs do not have business backgrounds. That is not a criticism. Most MTs are very good at what they do--they are very good at being MTs. Most MTs are honest, and a very fatal error many of them make (as do other people who find their way into lawyers' offices) assume that because they themselves are honest, the people they are doing business with must be honest as well. That is a deadly assumption--and one that has resulted in more money for lawyers that you can imagine. The MT world has morphed over the last 15 or so years into a winner-take-all battle of the corporate giants. It has become sort of like a boxing match with no rules. They get away with this outrageous behavior simply because they CAN. No one challenges them. People are afraid of losing their jobs, people have mortgages/rent to pay, children to support, school to pay for, etc. and most people just don't like confrontation. (Those of us who do become lawyers--smiling here.) And, I hate to raise this issue, but it should be raised. It is the issue of sexism. Many women have traditionally been conditioned to "do what the men say." Thankfully, this bit of malarkey is changing. The generation coming up is not about to defer to someone just because he's a guy and I say good for them! I am a feminist and not ashamed to say it. I believe in equal rights for all people. I do not care about a person's color, religion (or lack of it), gender or sexual orientation. I do care that everybody get a fair shake. At this point, you need to create a path for yourself to get some answers. Is there anybody in your company that you feel you can safely address these issues with? Someone in HR? If not, then once you have your brief summary and, say, perhaps a month's worth of log of times you are called, hours worked, you can establish what we call a "pattern and practice," and I would then contact, in this order:
1. The IRS. Ask if you can make an appointment to come in and bring the documents (including a copy of your contract) or if you should send them. If you are sending them, get the specific name of a person to whom to address them. Try to get the name of one person with whom you can deal so you will not have to repeat the story again and again. If a case number is assigned, write it down and use it on all subsequent correspondence. That will cut down on wasted time. Send all letters and documents via certified mail with a return receipt requested. (It is not necessary to send it via registered mail--registered mail is used when something of clear value, i.e., a Rolex watch or something like that that has inherent physical value comes to mind. With Registered Mail, the USPS takes logs it in at each postal station along the way. In a way, it is kind of like a chain of evidence. You do not need Registered Mail, but you do need Certified Mail.) Never send originals of anything to anybody. After you speak with the IRS, then go to step 2:
2. Contact the Labor Board. Give them the same presentation that you gave the IRS.
3. You might also want to contact the Fraud Division of the Attorney General's office of whatever state you live in.
4. You might want to also send copies to the Fraud Division of the Attorney General's office of whatever state they are incorporated (and I am assuming they are either a regular corporation or an LLC) with a brief letter of explanation.
I know another MT who had some dealings with the Labor Board and she said they were extremely supportive, kind, and helped her get a nice chunk of change of back pay to which she was entitled.
5. If you are still with me, and if there are any gray areas after speaking with the IRS and Labor Board, you might want to speak with an attorney. If you cannot afford private counsel (and it is quite expensive), there are alternatives. If you live near a university that has a law school, call the dean's office and ask if they ever have those kinds of events where people can talk to a 3L (third-year law student supervised by a licensed attorney), or call your state's Bar Association and see what they can offer. Most Bar Associations require that all attorneys do X amount of hours of pro bono work each year, and you may well qualify for a free meeting. I realize that this answer has been long, but I wanted to give you all of the options possible so you can get things settled back onto a fairer playing field for yourself. My sense among MTs is that they have about had it with being exploited, used, and kicked under the bus. I hope so. I hope that people will fight back. Just as a final thought--do you know any of the other MTs? If so, it might not hurt to talk to some of them--discretely. Find out what their experience has been. Are they willing to join you in setting this situation aright? Please stay in touch with us and let us know how it goes. Perhaps someone reading this will have dealt directly with the IRS on an IC issue and can come on and provide more direct information for you. From where I sit, it looks like the company wants to have its cake and eat it, too--and that has brought down more than one company. The abuse of the statutory employee provisions is one of the biggest and most frequently used no-nos that occurs, not only in the MT world, but in contracting and in all kinds of other professions. There is a separate division in the IRS just to deal with statutory issues. Please do not feel alone. The government people really do want to help and get this kind of stuff stopped. Good luck and please let us know what happens.
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Complete Discussion Below: (  marks the location of current message within thread)
- Ad on job board: - sm (Views: 1772, 2015-12-15, 3:26 pm)
- Yes! - anon (Views: 1275, 2015-12-15, 7:11 pm)
- And the verdict... - Anon (Views: 1424, 2015-12-15, 8:14 pm)
- IC hours - katina (Views: 1097, 2015-12-16, 9:06 am)
- Katina - Nick (Views: 998, 2015-12-16, 9:16 am)
- Yes! - Old Pro (Views: 862, 2015-12-16, 8:39 am)
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