Immigrant Workforce: What are their rights? Are they undercutting opportunities for US workers?
Yesterday, I had a conversation with one of our dish washers. She had just wrapped up a 17.5 hour day, working from 7 a.m. to 12:30 p.m., covering the breakfast, lunch, and banquet shifts. In the past, she has mentioned her “long days”, but I had no idea she worked those kind of hours -- I always assumed that she was just our evening dish washer.
Of course, this elicited a number of other questions. Specifically, how many hours does she average and how much overtime is she making? According to her, she works in excesses of 100 hours per week as an "independent" contractor with a third party company and as a result, does not receive overtime - just a flat $8.00/hour.
This, of course, led me to some retrospection - not something I do often :).
My initial response was sympathy. I feel for her and find myself concerned for her health and her rights. She is a hard worker, an intelligent lady, and deserves a much better "quality of life" than she is living. Her work ethic and commitment are models to which we should all aspire.
After some thought though, my concern turned towards the approximate 12.5 million unemployed Americans currently looking for work. Under normal circumstance, her 17.5 hours and 40 plus hours per week would require two employees under current Labor Law - assuming no overtime is allowed. Her “independent contractor” status allows her and my employer to circumvent Labor Law and thus eliminating the need to hire a second employee.
For me, this hit a sore spot on my psyche.
Before I found my current job, I was unemployed for a few months and, during that time, I applied for every job imaginable. Nothing was beneath me. I would have jumped at the chance to wash dishes, even part time. I needed the money.
Now, I’m wondering how many of those openings were filled by "independent contractors". Obviously, this put me and those like me at the time at a distinct disadvantage with prospective employers. After all, why would they hire me if they have a ready pool of workers that are willing to work 100 plus hours a week at minimum wage with no overtime or benefits?
Of course, putting the greater social implications aside. I would jump at the chance to work the hours she is working per week, even at $8.00 per hour. That $100.00 Bill she made (maybe tax free?) is lot more than I made for my shift on the same day.
What are you thoughts?
- Chief WhachusaLv 67 years agoBest Answer
My thought in a nutshell. (in part)
"Frequently Asked Overtime and Minimum Wage Questions"
....."Q: My employer will not pay me overtime because he classified my job title as an “Independent Contractor” or “1099 worker”. Is this true and am I an “Independent Contractor / 1099 worker”?
A: Some employers incorrectly define an employee as an “Independent Contractor” in an attempt to deny overtime payments. Although “Independent Contractors” are not entitled to overtime pay, many employees characterized as “Independent Contractors” are actually non-exempt employees. Simply because an employee is “titled” as an “Independent Contractor means very little – the employee’s job description (and underlying nature of the relationship) is the determining factor in deciding whether an employee is owed overtime. Many times, employers incorrectly classify temporary workers during rush periods or “busy seasons” as “Independent Contractors”.
Regardless of the length of employment, in most cases, an individual is considered an employee (eligible for overtime) and not an independent contractor, if:
The employer dictates how, when and where the individual performs their work
The employer provides training
The employer provides tools and equipment necessary for the job (office, computer, cell phone, etc.)
The employer requires the individual to work at the employer’s workplace or another designated location
The employer pays the individual by the hour, rather than by the job or project
The employer requires the individual to provide reports of their work progress to a supervisor
Of note, an employee cannot “opt-out” or “contract-out” of being a non-exempt employee – Courts rarely recognize a person working solely for one business to be an independent contractor, even when there’s a written contract stating otherwise. A non-exempt employee is always eligible for overtime regardless if he/she is listed as an “Independent Contractor”. Additionally, “Independent Contractors” typically work for numerous companies and supervise their own work.".....
I think since the employer dictates how, when and where the individual performs their work, provides training, provides tools and equipment necessary for the job, requires the individual to work at the employer’s workplace, pays the individual by the hour and rather than by the job or project that the employee is eligible for overtime or at least the employee meets four of the five provisions/requirements above. Since she can not as a “Independent Contractors” typically work for numerous companies and supervise their her own work I would think she is more the employee than an independent contractor.
Being that you have not mention anything about her immigration status, I am assuming she is a hard working citizen. How others came to the idea that illegal immigration enforcement is targeting employees rather than employers and that they undercut opportunities for U.S. citizens when again there is no mention of status to do so in your question.Source(s): "Workers' Subjective Belief of Independent Contractor Status Cannot Trump the Law Knowing the Proper Definition of “Contractor” can Save Money, Headache" "In 2008, the Fifth Circuit Court of Appeals, which presides over Texas, Louisiana and Mississippi, demonstrated that it will closely scrutinize attempts by employers to circumvent overtime laws via an “independent contractor” status, under the Fair Labor Standards Act (FLSA). In Joseph Hopkins, et al. v. Cornerstone America, et al., 545 F.3d 338 (5th Cir. 2008), the Fifth Circuit emphasized that an independent contractor is an independent business person, not just someone who declares himself to be an independent contractor, or someone who subjectively believes that he is an independent contractor."..... http://www.coatsrose.com/workers-subjective-belief...
- 7 years ago
Oh hell yeah they undercut the US workforce. One of the biggest areas besides landscaping, is contracting.
It is the reason I am laid off now. See, construction companies sidestep the laws by SUB-CONTRACTING. They hire illegals to do the work instead of Americans at way below our hourly wage and longer days for them
Ok so you know that they are off-the-books by being paid in cash at the end of each day. What you might not know is these guys don't read or write English so they don't know safety operation of power tools. All too often they hack off a fingertip, puncture a wrist, arm or foot, fall and break a leg or I even witnessed an illegal cut the power cord and wreck a perfectly good belt sander. It's like giving a toddler a nail gun and telling him to be careful.
So what if they get hurt, there's plenty more illegals hanging out in front of Home Depot to take their place. Problem for the illegal is they don't get workman's comp--but they do get free hospital care.
But it's good for business because illegals = cost cutting measures at a time when everyone's belt-tightening. Americans pay the price.
Frank you know less than squat.
Raelyn Asians aren't doing my job, hispanics are.
- RaelynLv 77 years ago
The war on illegal immigration has been a failure because enforcement has targeted easily replaceable cheap workers with nothing to lose instead of employers who hire them. The labor savings passed on to consumers are marginal while the costs of providing food, shelter, and medical care for thei US-born children of these low wage workers are passed on to taxpayers footing the bill for food stamps, TANF, Section 8, and Medicaid. The growth of illegal immigration has depressed the wages of the lowest paid legal workers by about five percent. When the wages of legal workers go down, that drives up the welfare rolls even higher. Taxpayers also she'll out $100 a day for each detainee in jail plus thousands of dollars in deportation costs. Every year immigration reform bills are introduced in Congress. These bills offer a path to a green card for illegal immigratns who meet certain criteria and establish more rigorous enforcement of immigration and employment laws, including the use of enhanced Social Security cards with biodata instead of the flimsy, easily duplicated cards currently in use. Shifting enforcement from catching illegal immigrants to catching employers and punishing them with huge fines would be the single most effective thing we could do to prevent the influx of exploitable, illegal labor. The fines would pay the salaries of the auditors. $100-a-day jail cells and $1,500 one-way tickets home should be reserved for criminals who threaten public safety.
- 3 years ago
Migrants force most US employees to learn some advanced job expertise, so we get more of excessive-tech items and services even as getting low-tech stuff completed at minimize fee. Certainly, for those who acquired a tax-free job doing the dishes, you can have likely bought stuck there, and by no means bought the nicer job that you've now. And your job is nicer - while it pays less per day, you may have more free time, and you are much less tired than your dishwashing pal. In addition, your restaurant currently has each you and a dishwasher. With out immigrants, you would be the dishwasher and your current job would no longer be achieved at all (or would be brought to anyone else's responsibilities). Which means that worse service for the customers.
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- Grey EagleLv 57 years ago
Yes, they do undercut opportunities for U S citizens. Employers, when discovered hiring illegals should be fined so heavily that they will never consider doing it again.
- PaulineLv 77 years ago
So What stops you or anyone else being an "Independent contractor" and doing 100 hours/week?
It's a similar situation to Uk "self-employed" or "subcontractors" who get no employer benefits.
- Anonymous7 years ago
dont believe everything you are told