Q: Can my work fire me from my 9-5 if I don’t want to be an independent contractor after hours?
I’m a process server who gets paid hourly. When I started part of the job was to work 9-5 then after that I’d also work as an I.C. . But that has since been taken away and they no longer wanted us to do after hours work and have hired actually I.C. But those I.C aren’t really doing a good job with there serves. I do not want to do after hours work any longer I didn’t realize how burnt out I’ve been. I have expressed countless times I do not want to do anything after hours anymore. Also the fact that majority of the time the do not pay me for all of my set of attempts stated it’s because they gave discounts so the client didn’t have to pay so I have to do the job for free as an I.C but now my day job is being threatened because I do not want to be an I.C after hours because after working 9-5 I don’t want to work 5-10 as an I.C and because they don’t even pay me for half the work I do.
A:
Your employer may require you to work as many hours as it is necessary for the business. However, you have to be compensated for all overtime hours if you work more than 8 hours a day and/or more than 40 hours per week. Your employer cannot avoid paying overtime by designating you as an Independent Contractor after you work 8 hours or more in a day.
If you simply refuse to work overtime hours, the employer can terminate you and it will be lawful. However, it is unlawful to terminate an employee because that employee demands proper overtime compensation for the worked overtime hours.
Sincerely,
Maya L. Serkova
A:
An employer has the right to terminate an at will employee at any time and for any reason or even no reason at all. Terminating an employee who is unavailable to work hours desired by the employer would generally be a good reason to terminate the employee.
However, I seriously doubt you are properly classified as an independent contractor in the evening, especially if you are doing the same thing during the day. If you refuse to work as an independent contractor because you would be classified as such, and you are terminated for refusing to paid as an IC, you may well have a legitimate claim. But if you are fired for refusing to work because you do not want to work in the evenings, you likely have no legal claim.
I would note that you and the other servers who worked as ICs at night probably have valid legal claims for being misclassified as ICs. You are likely owed overtime premiums, and perhaps meal and rest period penalties, along with incorrect wage statement penalties.
If you wish to pursue such claims it would be a good idea to locate and consult with an experienced employment law attorney as soon as possible to explore your facts and determine your options. I would suggest you look either on this site, or go to www.cela.org, the home page for the California Employment Lawyers Association, an organization whose members are dedicated to the representation of employees against their employers.
Most employment attorneys who practice this area of law offer a free or low cost consultation in the beginning and then, if the matter has merit and value, will usually agree to work on a contingency basis, meaning you can hire an attorney without paying any money until the matter results in a positive outcome for you. Many advance all the costs of the litigation as well. Do not let fear of fees and costs keep you from finding a good attorney.
Good luck to you.
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