Asked in Employment Law, Legal Malpractice and Tax Law for Texas

Q: Would it be legal for the place I regularly work to file me as an independant contractor to avoid taxes?

I am 16 and working a weekend job saturday and sunday. 10 hours on saturday, 7 hours on sunday. I go to work every weekend, yet I am filed as an independant contractor in order for the business to avoid paying employment tax, or workers' compensation insurance, and the rules provided by law are not being followed as far as breaks. I am filed under 10-99 as a contractor, and I filled out a w-9 and it says I'm a contractor. I am not receiving breaks like i should be, I only get 5 minutes every hour and I have no official lunch period or breaks. If i confront them about this, I am afraid I will be fired. Is any of this legal. If so, please inform me of what is and isn't legal about this situation.

1 Lawyer Answer
Juan B Hernandez
Juan B Hernandez
  • Licensed in Texas

A: You have a two-part question:

(1) Neither federal law or Texas state law require employers to provide employees with a lunch break. Employers choose whether to provide employees with a lunch break during a work shift. The only exception involves mothers who breastfeed. They must receive a lunch break of at least 30 minutes.

Yet, employers may not discriminate in permitting rest periods (“breaks” or “lunches”). This means an employer may not offer some employees rest periods based on sex, age, gender, national origin, religion, disability, or any other protected class. Yet, an employer could offer rest periods based upon a uniform policy, business needs, or productivity.

While lunch breaks are not mandatory, the Fair Labor Standards Act stipulates some general rules regarding lunch breaks and Texas state law mirrors these laws. Essentially, a break of 30 minutes or more constitutes a lunch break. Both federal and state law do not require employers to compensate employees for this time when employees are not engaged in work while eating. If an employer provides a break shorter than 30 minutes, it must be paid.

(2) Just because the Company labels you as an "independent contractor" does not necessarily mean you are one. Here is a link that discusses how the Texas Workforce Commission determines whether an individual is an employee vs. independent contractor.

The link also provides ways to submit a claim if you believe you have been misclassified.

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