Direction and Control

Quickly I’ll just address that I may be coming out of a previously-mentioned hiatus much earlier than anticipated. I guess I love writing and stenography too much to stop.

That aside, followers of the blog will recall we have written about Independent Contractors versus Employees in the past. We discovered form SS8, where a worker may ask the IRS to help determine whether they should be classified independent contractor or employee. We have even discussed the power of a contract. What have we missed?A real-world example for the students among us! So today we explore a quick fact of life. When you go into freelancing, you will often get little pushes or orders from agencies. For a lot of you, nothing seems wrong about this kind of a thing, they’re hiring me so I do what they say. But here is the problem: Chances are you are an independent contractor. You are freelance. That means you are responsible. It is generally not an acceptable excuse to say “but my agency said so.” The example above is not so bad. Basically the company is saying “be professional, dammit.” But here is the thing: When you are an independent contractor the “employer” or hiring entity is not supposed to have direction or control. They cannot technically micromanage when you appear or what you say. Best advice: When they give these rules, if they’re not ultra imposing, smile, nod, and do what you normally would anyway. It’s often not worth it to get into a big argument with an agency over direction and control because then they may withhold work. Truly, “winning” is not everything.

Now the hard part. Always remember we have a choice. Occasionally the agency demands that we change something in a transcript or even alter colloquy, and you have to weigh that agency’s request with your reputation and liability. If it’s a simple style change, many of us have acquiesced because it just doesn’t make sense to go to war over. But if an agency wants us to give them a layout that cuts our pages in half or edit something out of the record that a lawyer said, we really have to consider the morals of that, and beyond the morals, that we may be liable if anyone makes a claim against us.

In summary, if you are an independent contractor:

  1. They (hiring entities) cannot control or micromanage you, but they will try.
  2. They can withhold work for pretty much any reason. You have arguably fewer legal rights than an at-will employee. Getting into a squabble over something inconsequential can damage you more than “losing” an argument. On the flip side, if they’re trying to pressure you into committing to a low rate or something that could harm you or your wallet, you have the right to refuse or negotiate.
  3. You are considered an equal on the level of the agency. “My agency told me to do it” may not fly if a claim is made against you.
  4. You need to be aware of antitrust law and not violate it. In brief, colluding to fix rates can cause you trouble. Examples: Don’t work for XYZ Company for less than 5.00 or we should all charge a dollar on copies. These are or can be illegal agreements to fix prices essentially. Informing ourselves and others on general business principles like inflation is probably okay.
  5. Dependent on the laws of your jurisdiction you may be entitled to a written contract with the hiring agency, but don’t be too surprised if they don’t provide one. See 2. Choose your battles.
  6. If you are being treated as an employee and you suffer a work injury, you may be able to make a legal claim for workers comp.

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