Do you think the side hustle platform you work for is mistreating you — forcing you into unpaid training, long hours without overtime, or simply not paying you for all the hours you work? This type of mistreatment may indicate that you have been ‘misclassified’. And, if so, you could be owed hundreds — maybe even thousands — of dollars in back pay.
The Department of Labor, which enforces minimum wage laws, believes thousands of companies may be “misclassifying” their employees by calling them “independent contractors.” In doing so, 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 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 receive job security and reliable pay. but independent contractors have the freedom to work when and how they want.
But thanks to thousands of companies ranging from Lugg and Handy to Fiverr and Rover that offer job “shopping,” the lines between independent contractors and employees have blurred. This is because some of these marketplaces impose employee-type restrictions on the independent contractors who find work through them.
Does that make them employees? It depends.
The Department of Labor will begin enforcing new rules in March that aim to delineate who is an employee and who is an independent contractor. It is a complex test with many parts. The editors of SideHusl.com have created a 25-question quiz based on the upcoming rules to help you figure out which side of that line you fall on.
It is important to note that the law defining who is an employee and who is self-employed is hazy. There are no bright lines. But the higher you score on this quiz, the more likely you are an employee — not a self-employed independent contractor.
And if that’s the case, you could be owed up to two years of lost wages, plus penalties that could double the damages. (See “Your Action Plan” below.)
Scoring
Give yourself four marks for each answer (A). and 0 marks for each (B) answer.
The quiz
1. Were you given job training, with the expectation that you would perform future job duties as trained?
(a) yes (b) no
2. Are you punished if you do your job effectively but in a way that deviates from your training?
(a) yes (b) no
3. Are you told where and what hours to work?
(a) yes (b) no
4. Are you penalized if you don’t show up right away?
(a) yes (b) no
5. Does the platform have a say in the tools you use for work? In other words, can it reject 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 punished if you didn’t wear this uniform?
(a) yes (b) no
8. Are you given instructions on where or what to buy in relation to work-related supplies?
(a) yes (b) no
evaluations
9. Do you evaluate your performance?
(a) yes (b) no
10. Are these evaluations based on whether you completed a task successfully or whether you completed the task following company guidelines?
(a) how the work was completed — i.e. whether it was completed in accordance with company guidelines (b) I am evaluated only on whether the work was completed successfully or well
11. Do your ratings have an impact on what the company allows you to do?
(a) yes (b) no
Another job
12. Are you able to seek other business opportunities with multiple companies, including competitors of the company or companies you work for?
(a) no (b) yes
13. Do you actually work with multiple companies each year, with no one company providing the majority of your income?
(a) no (b) yes
Details
14. Does the company pay your expenses, from tolls and fees to paying mileage and supplies?
(a) yes (b) no
15. Are you paid by the hour or by the job?
(a) time (b) work
16. Are you working under a written contract (which could be a website’s ‘terms and conditions’)?
(a) no (b) yes
17. Is there an expected end date for your work arrangement or are you working for an indefinite period of time?
(a) an indefinite period of time (b) work until a specific task is completed, although the time could be extended if the task takes longer than expected
18. Do you receive employee benefits such as health insurance or access to a pension 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 reject jobs 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 prices
23. Can you earn a higher hourly wage by being smart, strategic, or efficient about how you get your work done?
(a) not really (b) yes
24. Can you contact your customers directly or do you have to go through an intermediary in the company you work through?
(a) I have to go through the company to contact customers (b) I contact my customers directly
25. Do you — or the company — control the scope of any work? This includes services, reviews and project deadlines.
(a) controlled by the company I work for (b) I negotiate the scope of work with each client.
Your score
Count your answers (a) 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 lawsuits result in workers receiving back wages. And, if a company has egregious or repeated violations, employees can receive up to twice what they are owed in penalties.
Can’t file online? You can contact the Department of Labor by phone at 1-866-4US-WAGE.
Make sure you keep track of all the hours you work to get the full amount you are owed. The Department of Labor offers a smartphone app to make it easy to track your hours here.
2/12/2024
