Legal Question in Employment Law in New York
I work for a NY-based IT firm, as a programmer. Most (I'm not sure if all) of myself and my fellow colleagues are remote staff, and I am concerned that the company is bypassing US minimum wage with contractual arrangements. I understand that NY minimum wage is $8/hr, but we have as low as $5/hr.
Details:
(1) We are paid monthly, at a fixed rate (40h/week).
(2) Not all of us are US citizens, we could be anywhere in the world.
(3) We are made to open a limited company / corporation at our own jurisdictions, and then the company ("boss") would contract our companies ("ourselves") with a "Work for hire agreement".
(4) We are free to choose the location of work, but we are required to have relatively fixed working hours - chosen by us, but must have overlap with NY time. There is a full table, listing each of our working hours, after this initial choice.
(5) We are required to stay connected and communicative with the company (email, corporate chatroom, etc) at all times during working hours.
(6) All our work, etc etc, belongs to company.
(7) We are not given any of social security, or other US-employee benefits; we (individual employees) do not pay US tax; instead we are expected to sort out and pay taxes at our jurisdictions.
(8) We are assigned and made to work at projects by company, we have no choice at this.
(9) The contract does mention a duration as "ongoing".
(10) The contract gives no mention of "employee" or "independent contractor", but I have read that it is the substantial reality that counts?
(11) The contract does cover a lot about "deliverables", that we should submit them on time, that they should be of high quality, that they must pass acceptance tests from the company, that all copyright, ownership, etc belongs to company, etc.
(12) There is the standard non-competition clause.
(13) There are two explicit clauses, one giving the governing law as NY, the other saying jurisdiction is NY.
(14) There is also the standard period-of-notice clause, which I assume is common and expected in employment contracts but not in commercial, corporation-to-corporation contracts.
1 Answer from Attorneys
Your situation raises certain issues that I would like to investigate, at no charge to you. Not saying there is a legal claim to be made (or that I would want to bring such a claim) but I am interested in understanding more about your situation. If I was to take a case it would be on a no collection, no fee, basis. See my website minimumwaglaw.com
Just because the company is in NY does not mean you are entitled to the NY minimum wage.
I would like to see a copy of the contract you mention (you can send to me with name, personal details, removed if you wish). Email me at [email protected].
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