Q: Does my employer owe me money for time spent working?
I am a DJ. The company for which I work has establishments set up regular weekly gigs with them, to which I get assigned. Each week, I prep the materials out of my own pocket, drive to the establishment on my own dime, and work the gig each Wednesday. When the gig occurs normally, I am compensated to the point that the materials and travel expense is not a concern.
However, there are times where the establishment will cancel the gig, due to lack of interest at the venue when its about to start. I've already done the administrative work, gotten to the gig, and worked on behalf of my company leading up to the official start time of the gig. When the establishment cancels, there is no compensation for me. I do not get paid, nor do I get reimbursed for any of my materials, car costs, or time.
I am not an independent contractor, but an employee of the company. It's always been explained as "part of the job." Am I owed something from my employer?
A: In California; "―Hours worked‖ means the time during which an employee is subject to the control of an employer, and includes all the time the employee is suffered or permitted to work, whether or not required to do so." Under Federal law: "“Employ” includes to suffer or permit to work." The prep is part of the work. You are also entitled as an employee to your expenses to be reimbursed. As an employee, you are entitled to be paid for all hours you work, whether the job is cancelled or not. The risk of cancellation is supposed to fall upon the employer, not on you. BUT, your description raises questions about who the venue is actually hiring and whether your employer is merely an intermediary that sets up a gig for you. When you say "When the gig occurs normally, I am compensated to the point that the materials and travel expense is not a concern." this seems to indicate you are getting paid from the venue, not the employer, because employers don't usually pay the gig worker a percentage of the money they get. Actual employees have set hourly rates or are on commission. You have a different working arrangement. You should negotiate with the employer for compensation to at least cover your out of pocket expenses when the venue cancels at the last minute.
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