Legal Question in Employment Law in California
I am a dog groomer in California and my manager now wants us to be Independent contractors to save money and not have to pay a part of our taxes. I am unsure about the legalities regarding independent contractors and don't know what this means for me.
Currently we are considered employees and we pay the bathers (other employees) a dollar amount usually $3 or $5 per dog that they bathe for us, and it comes out of our 50% commission. We provide our own grooming tools (scissors, blades clippers etc.) but use the salons shampoo, bath tubs, blow dryers and grooming table/station. We have to be at work at 8am and can leave when we are done as long as it is not our week to close. On our week to close, we have to stay and answer phones and check out other people's dogs until the shop closes at 4 even if we are done grooming at 1. We are booked dogs by my manager, ourselves and other groomers...depending on who answers the phone. We don't get to set our own prices and will follow a dress code. We don't get any overtime pay and we don't get paid for anything hourly. So on the days when I am done grooming (making money) at 1 but have to stay until 4... I am doing secretary / janitorial duties and not getting paid anything.
If we are changed to independent contractors we will still have to work 8-4, we still will be getting 50% commission getting paid every other Tuesday with a paycheck, we will still have to pay the bathers out of our 50% commission, still have to follow a dress code and will still get stuck with closing reception/dog sitting duties on our week to close. Nothing will change, except that I will be making less than 50% commission because I will now have to pay more taxes.
My question is.... is this legal and if not, what is legal regarding independent contractors in California. I have been doing some reading and from what I have read... it seems like groomers really can't be independent contractors but that they can be booth renters.
** Another note... one of the girls that works here is actually already considered an independent contractor and she does everything the same as us but doesn't get taxes taken out of her checks. She works the same, gets booked the same way as us and literally does everything the same as those of us that are considered employees. **
2 Answers from Attorneys
The general test for who is an employee and who is a contractor has a lot of factors. Reduced to it's essentials, the question is whether the person providing services looks like he or she has her own business, or whether that person looks more like an employee. The factors you mention suggest that you are more like an employee -- but an interview with you and review of other materials would be needed to make that determination. This also assumes that there is no statute specifically stating that groomers are indepedent contractors. I am not aware of such a statute, but have not researched the issue.
You need to talk to an attorney that handles employee-side matters for advice, and have a full discussion of your rights and strategic options. Many will offer a free initial consultation. You can look through LawGuru, you can contact your local bar association, or you can look on the Internet for assistance.
I will go one step further than Mr. Perry and say that unless there are other factors you have not told us about, you ARE and employee and putting you on independent contractor status without a total overhaul of your working arrangements, terms and conditions would be entirely illegal and very financially unfavorable to you.
I also note that your current arrangement may be illegal as well, depending on how much commission you earn. Any day that your commission divided by the number of hours you are required to be at the shop adds up to less than minimum wage, OR adds up to less than minimum wage for 8 hours and 1.5 x minimum for any time over 8 hours, your employer owes you back pay and penalties. Lastly, you have not mentioned break times, but if you are not getting 2 x 15 minutes break time and 1 meal break of at least 30 minutes, you are owed penalty pay as well.
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