Indepdendent/Contractor vs Regular Employee I was about to ask another question but think I should start at the basics. What exactly does it mean to be working as a contractor? Many jobs require you to sign some contract (e.g. non disclosure agreement, non-compete) but this isn't considered contract work. Also, is a freelancer considered a contractor? I ask because many (labor) laws are different for regular employees vs contractors. For example in free lance contracts, what's the point of this: (example from https://www.pandadoc.com/freelance-contract-template) Independent Contractor. Nothing contained in this Contract shall create an employer and employee relationship, a master and servant relationship, or a principal and agent relationship between Freelancer and Customer. Customer and Freelancer agree that Freelancer is, and at all times during this Contract shall remain, an independent contractor. What does mean independent with regards to contractor?
This is a confusing issue in most common law jurisdictions and AFAIK, Canada and Australia still rely on common law definitions of this. First, any arrangement where someone provides services in return for compensation is a contract. If worker is an employee then the contract is an employment contract and is subject to whatever laws apply to employees (things like, workers' compensation, withholding of tax, superannuation etc.). If the worker is instead operating their own business that is independent of the principal's business they are independent contractors and employee law doesn't apply. In most cases it is easy to determine if someone is an employee or is a contractor. For example, if your business hires a bookkeeper to work set hours for which they are paid a salary from which you detect and remit tax, etc. then they are clearly an employee. Your external accountant who does your year end taxes, has their own premises and contracts to many other businesses is clearly an independent contractor. However, the dividing line is not clear cut in edge cases. Using British Columbia as an example: Calling a person an independent contractor, even if the worker agrees, does not decide the issue. In order to determine whether a worker is an employee or an independent contractor under the Act, it is important to consider the definitions of “employee”, “employer” and “work”. The Act defines these terms very broadly. The courts have developed some common law tests that may be useful, but they must be considered in a manner consistent with the definitions and purposes of the Act. Some of these tests include how much direction and control the worker is subject to, whether the worker operates their own business and has their own clients, whether the worker has a chance of profit or a risk of loss, whether the work they are doing is integral to the business and whether there is an ongoing relationship. The longer a person works for another, the more closely the worker’s duties are connected to the purpose of the business, the more the person who pays the worker controls the material and tools and directs the activities, the more likely it is that the relationship is one of employer/employee. So, deciding if a person is an employee or contractor is not up to the worker or the principal and what they may or may not have written on a piece of paper! The entire relationship must be considered. As an additional complication, legislation is not uniform between state/provincial and federal levels of government and even within the same jurisdiction. For example, in Australia, it is possible that a person is an independent contractor for Federal income tax law but an employee for state workers' compensation law.
This is a duck I might want this duck to work for me laying duck eggs (only not this duck because it's a boy duck). If I call this duck a chicken; it's still a duck. Similarly, the duck may call itself a chicken. It may even believe it's a chicken. It's still a duck. Now, I might want to call the duck a chicken because ducks have fewer workplace rights than chickens. Similarly, the duck might want to be a chicken because chickens can be more ... creative ... with their taxes; they might even be able to funnel their income through special C-corporations (C is for chicken). It's still a duck. The law doesn't care what you call your relationship or even what you think your relationship is - it cares about what it actually is. Is a freelance software developer a duck or a chicken? The actual law can be found here. Starting from the beginning: 2750.3. (a) (1) For purposes of the provisions of this code and the Unemployment Insurance Code, and for the wage orders of the Industrial Welfare Commission, a person providing labor or services for remuneration shall be considered an employee rather than an independent contractor unless the hiring entity demonstrates that all of the following conditions are satisfied: (A) The person is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact. (B) The person performs work that is outside the usual course of the hiring entity’s business. (C) The person is customarily engaged in an independently established trade, occupation, or business of the same nature as that involved in the work performed. So a freelance software developer who is working without their client's &quot;control and direction&quot; about when, where and how they do their work (obviously, direction on the final product is OK), for a client who doesn't normally develop that type of software (e.g. writing a website for a hairdresser or even writing accounting software for a computer game developer but not writing computer games for a computer game developer) and that there exists such a 'thing' as independent software developers (which there are) can be correctly classified as a contractor. A person who goes into a software house to work on their in-house code is an employee. So after the initial classification, there is a bundle of exemptions and exceptions. None of them are particularly relevant until we get to: (e) Subdivision (a) and the holding in Dynamex do not apply to a bona fide business-to-business contracting relationship, as defined below, under the following conditions: (1) If a business entity formed as a sole proprietorship, partnership, limited liability company, limited liability partnership, or corporation (“business service provider”) contracts to provide services to another such business (“contracting business”), the determination of employee or independent contractor status of the business services provider shall be governed by Borello, if the contracting business demonstrates that all of the following criteria are satisfied: (A) The business service provider is free from the control and direction of the contracting business entity in connection with the performance of the work, both under the contract for the performance of the work and in fact. (B) The business service provider is providing services directly to the contracting business rather than to customers of the contracting business. (C) The contract with the business service provider is in writing. (D) If the work is performed in a jurisdiction that requires the business service provider to have a business license or business tax registration, the business service provider has the required business license or business tax registration. (E) The business service provider maintains a business location that is separate from the business or work location of the contracting business. (F) The business service provider is customarily engaged in an independently established business of the same nature as that involved in the work performed. (G) The business service provider actually contracts with other businesses to provide the same or similar services and maintains a clientele without restrictions from the hiring entity. (H) The business service provider advertises and holds itself out to the public as available to provide the same or similar services. (I) The business service provider provides its own tools, vehicles, and equipment to perform the services. (J) The business service provider can negotiate its own rates. (K) Consistent with the nature of the work, the business service provider can set its own hours and location of work. (L) The business service provider is not performing the type of work for which a license from the Contractor’s State License Board is required, pursuant to Chapter 9 (commencing with Section 7000) of Division 3 of the Business and Professions Code. Summarising this: if the freelance software developer is part of a bonafide business providing services to the 'public' and not just to this employer then they can be correctly classified as a contractor.
If this is a client - contractor relationship, it depends on the contract. Attorneys may bill on a quarter-hour basis, or a 10th-hour basis. A 1 minute phone call under a quarter hour billing basis is more expensive than under a 10th-hour basis, all other things being equal (i.e. the hourly rare). So if I hire an attorney to do something and he bills me for 1 hr 6 minutes because he spent 1 hr 4 minutes to do it, he can do that, and I can't object that he didn't spend a full second hour on the task. It just comes down to what the client and contractor agreed to, and if a contractor wants to bill by the second, he can. For employers and their employees, the Fair Labor Standards Act applies in the US (there are state analogs which mostly say the same thing). The employer is responsible for paying employees based on work done, so they have to keep records. Department of Labor rules allow an employer to simplify record keeping, for example they can round employee hours (1 hr 2 minutes is the same as 55 minutes) – you have to be consistent. They explicitly allow 5 minute granularity, and don't disallow granularity to the second.
If an offer is accepted, you have a contract Oral contracts are binding for most transactions. See What is a contract and what is required for them to be valid? However, from the circumstances, it’s not clear that there was an offer subject to acceptance. Had the wages been agreed? The hours of work? The annual leave? The sick leave? If these were undetermined then there is no contract.
The fact that you have been laid off is both your company’s information, and your personal information. You are allowed to tell your own personal information. The move to a new partner however is not your information. As long as you are still employed your employment contract will probably say that you mustn’t do anything to damage the company. You’d need to read what the consequences would be. Maybe the contract says you can be fired... which doesn’t matter unless you would lose a redundancy payment. After leaving it would depend on whether you had a non-disclosure agreement. And last, does your company care? This merger can’t be kept a secret anyway.
Under United States law, copyright is normally held by the creator of a work. There is one major exception to this rule: the "work for hire." If something is considered a "work for hire" under the copyright statutes, the copyright is held by the employer. Whether something qualifies as a work for hire is a complex analysis: here is a Copyright Office circular covering some of the basics. To be clear, I'm not giving an opinion (and I don't have enough information to give an opinion) on whether any specific works you or your fiance may create or commission qualify as "works for hire." It's a narrower test than you probably think it is. If the work is not a work for hire, the copyright holder owns the copyright, and anyone else can use it only with a license from the copyright holder. A license can be implied by the parties' behavior and communications--but it shouldn't be. If you're in a situation where you need to know, for example: That you are allowed to use the artwork forever, and the artist can't ask you to stop later; That you are allowed to change the artwork if you need to, even a simple change like cropping or adding a filter or text; or That, if your product is successful, the artist won't be able to sell another license to someone else to compete with you; then you need a written contract spelling out who owns the copyright and what the rights of the other party are. A lawyer can draw up a simple, re-usable form contract for you cheaply that will prevent the problems you're worried about. Remember: even if this is a work-for-hire situation, if you need to prove that down the road, it may require a trial, or at least preliminary motion practice, to do so. That's a lot more expensive than getting your ducks in a row now will be. tl;dr: Get a lawyer. If you're in a major city, there may be a local arts law organization that will provide you with free help for a simple job like this one. (Volunteer Lawyers for the Arts operate in several East Coast cities, and I know many top commercial lawyers who do pro bono for them).
If two parties agree to the terms of an exchange, then there exists an enforceable contract. A signature is not needed to create a contract. However, an intent to negotiate a contract is not, per se, a contract. Absent some specific and explicit measures (which for major deals may be codified in an MOU or LOI that itself contains contractual terms), if you can't reach an agreement on terms then there is no contract. It's up to the particulars of "the verbal agreement to start the hiring process" whether an agreement on exchange has been reached, or merely proposed. E.g., "You and I agree that I will pay you $X in exchange for Y due Z" is a contract. "You and I agree that we'd like to work together, and we'll hammer out the terms X, Y, and Z by the end of the week" is merely a proposal to contract, not an actual contract. Of course, this doesn't mean you're immune to liability for failing to reach a contract in this hypothetical: you can always be sued!
In the United States, specifically in Norwalk, Connecticut, where I live, may I volunteer for an individual, and may an individual use volunteers? For example, may I volunteer as a personal chef for a celebrity, ie, cook them meals for free, and may they accept my services without compensating me? I think the answer depends on whether I'm an independent contractor or an employee. The answer is not nearly as simple and straighforward as the employee v. independent contractor distinction suggested in the question. People who work for free fit in a number of categories, some lawful and some not, even though the definition of employer under the Fair Labor Standards Act (FLSA) (regulations here) and parallel state legislation is facially very broad (people who suffer to let others work for them, more or less) and many of the exceptions are quite narrow. The nature of the categories is a nice illustration of how much social context and nuance is buried in a seemingly straightforward black and white legal rule like the minimum wage. Any time there are common practices that a statute doesn't expressly contemplated that aren't routinely the subject to litigation, you should doubt whether the statute really applies to them (although often enough it does), and courts are more likely in these circumstances than most to devise a definitional oriented, or implied, or common law exception to encompass the common practices as being lawful. The facts in the original question aren't rich enough in character to really determine which category applies, and those facts &quot;smell fishy&quot; as far as whether it would really fit in any legal category of unpaid work, in part, because the motives of the &quot;volunteer&quot; are very unclear. The legal categories include: People work for free in furtherance of their own charitable intent (e.g., working for free at a United Way fundraiser). People working for free who have bona fide donative intent (painting a mural on your boyfriend's wall as a birthday present). This is one possible category that the original question seems to be considering as possibility. Note that donative intent doesn't preclude an expectation that there will be unspecified, not legally enforceable, reciprocity in the future, in the form of reciprocal generosity, or in the form of owing someone an ill defined &quot;favor&quot; that doesn't amount to a true quid pro quo barter transaction. You might have donative intent towards a celebrity because you are a fan, because you appreciate their work or contributions, and because you desire to be part of the inner circle of a celebrity or wish to become a friend of a celebrity and want to do so out of friendship, since the celebrity is an awesome person that it would be nice to have in your life. This category could also include cases of moral but not legal obligation, or cases of seeking to do penance to the person for whom you volunteer out of non-legally binding guilty or shame (as distinct from a threat that you will be embarrassed). Family members doing chores for each other out of a duty of care and support on the part of a parent or spouse, or a duty to obey a parent arising at common law, on the part of a child, and similar family obligations. Closely related is unpaid work as a fiduciary (e.g. an executor, power of attorney agent, or trustee) with a donative or family relationship motivation. Parties to contracts remedying damage that they have done for which they would otherwise have contractual responsibility (e.g. cleaning your own apartment, or an apartment upon which you guaranteed someone else's lease, before the tenant moves out, so you won't have deductions from your security deposit, or so you won't be sued for damages). Similarly, work incurred to protect or add value to your own property. People who work expecting to be paid and have a legal right to be paid who don't get paid after the fact due to the insolvency of the employer, or discharge of the debt in bankruptcy, or the expiration of a statute of limitations or claims deadline in a probate proceeding. People performing court ordered community service and inmates in prison pursuant to a conviction. Self-employed business people who don't make a profit, either personally, or in a capacity as an officer or director of an entity owned by the self-employed person. But, if this involved providing services for no compensation, without a more involved business with expenses as well as receipts, as an alleged independent contractor, for a single other person, this is probably a case where the law would find that someone is actually an employee and not an independent contractor, and where the contract is void for want of consideration. The form over substance analysis that holds that is employment subject to the minimum wage for purposes of the FLSA and state law seems like the most likely scenario in the original question, but the facts aren't detailed enough to tell definitively. Unpaid interns and students learning while doing something of value (generally permitted, but the analysis of the FLSA and state law is rather involved). This is another category that plausible could apply to the original question. People within other express FLSA exceptions that are also present in state law. The illegal categories include: Slaves. These rare cases are usually prosecuted criminally intended to punish keeping slaves (often accompanied by human trafficking charges). Indentured servants (basically slaves for a term of years who aren't allowed to quit, often to someone who paid a major expense such as travel costs to a new country for you, in order to repay the debt). These rare cases are usually prosecuted criminally intended to punish this practice (often accompanied by human trafficking charges). Inmates in jails who have not yet been convicted of a crime, and who are awaiting trial, who are required to work without pay. People working for free due to duress or blackmail, not expressly authorized by law, and not merely the generalized economic duress of needing money to live (e.g. doing household chores for a bully because he threatened to beat you up if you don't). These cases, if they are litigated at all, are usually prosecuted criminally under extortion statutes. More generally, you are not a true &quot;volunteer&quot; if you work is in any meaningful sense involuntary, even if it does not support a provable case beyond a reasonable doubt of true criminal extortion. People in normal employment relationships who are paid for some work but required to do additional unpaid work as condition of employment. Most civil FLSA litigation involving completely unpaid work, involves this category of unpaid work. I'm sure that there are other possibilities that I have not considered and listed, but generally, the legality of working for free is evaluated on a category by category basis. Situations where payment is predominantly in kind (e.g. room and board and clothing) can be complex to analyze and these arrangements are frequently subject to special rules. The primary statutory minimum wage exemptions are as set forth in the exemptions provision of the FLSA: §213. Exemptions (a) Minimum wage and maximum hour requirements The provisions of sections 206 (except subsection (d) in the case of paragraph (1) of this subsection) and 207 of this title shall not apply with respect to— (1) any employee employed in a bona fide executive, administrative, or professional capacity (including any employee employed in the capacity of academic administrative personnel or teacher in elementary or secondary schools), or in the capacity of outside salesman (as such terms are defined and delimited from time to time by regulations of the Secretary, subject to the provisions of subchapter II of chapter 5 of title 5, except that an employee of a retail or service establishment shall not be excluded from the definition of employee employed in a bona fide executive or administrative capacity because of the number of hours in his workweek which he devotes to activities not directly or closely related to the performance of executive or administrative activities, if less than 40 per centum of his hours worked in the workweek are devoted to such activities); or (2) Repealed. Pub. L. 101–157, §3(c)(1), Nov. 17, 1989, 103 Stat. 939. (3) any employee employed by an establishment which is an amusement or recreational establishment, organized camp, or religious or non-profit educational conference center, if (A) it does not operate for more than seven months in any calendar year, or (B) during the preceding calendar year, its average receipts for any six months of such year were not more than 331/3 per centum of its average receipts for the other six months of such year, except that the exemption from sections 206 and 207 of this title provided by this paragraph does not apply with respect to any employee of a private entity engaged in providing services or facilities (other than, in the case of the exemption from section 206 of this title, a private entity engaged in providing services and facilities directly related to skiing) in a national park or a national forest, or on land in the National Wildlife Refuge System, under a contract with the Secretary of the Interior or the Secretary of Agriculture; or (4) Repealed. Pub. L. 101–157, §3(c)(1), Nov. 17, 1989, 103 Stat. 939. (5) any employee employed in the catching, taking, propagating, harvesting, cultivating, or farming of any kind of fish, shellfish, crustacea, sponges, seaweeds, or other aquatic forms of animal and vegetable life, or in the first processing, canning or packing such marine products at sea as an incident to, or in conjunction with, such fishing operations, including the going to and returning from work and loading and unloading when performed by any such employee; or (6) any employee employed in agriculture (A) if such employee is employed by an employer who did not, during any calendar quarter during the preceding calendar year, use more than five hundred man-days of agricultural labor, (B) if such employee is the parent, spouse, child, or other member of his employer's immediate family, (C) if such employee (i) is employed as a hand harvest laborer and is paid on a piece rate basis in an operation which has been, and is customarily and generally recognized as having been, paid on a piece rate basis in the region of employment, (ii) commutes daily from his permanent residence to the farm on which he is so employed, and (iii) has been employed in agriculture less than thirteen weeks during the preceding calendar year, (D) if such employee (other than an employee described in clause (C) of this subsection) (i) is sixteen years of age or under and is employed as a hand harvest laborer, is paid on a piece rate basis in an operation which has been, and is customarily and generally recognized as having been, paid on a piece rate basis in the region of employment, (ii) is employed on the same farm as his parent or person standing in the place of his parent, and (iii) is paid at the same piece rate as employees over age sixteen are paid on the same farm, or (E) if such employee is principally engaged in the range production of livestock; or (7) any employee to the extent that such employee is exempted by regulations, order, or certificate of the Secretary issued under section 214 of this title; or (8) any employee employed in connection with the publication of any weekly, semiweekly, or daily newspaper with a circulation of less than four thousand the major part of which circulation is within the county where published or counties contiguous thereto; or (9) Repealed. Pub. L. 93–259, §23(a)(1), Apr. 8, 1974, 88 Stat. 69. (10) any switchboard operator employed by an independently owned public telephone company which has not more than seven hundred and fifty stations; or (11) Repealed. Pub. L. 93–259, §10(a), Apr. 8, 1974, 88 Stat. 63. (12) any employee employed as a seaman on a vessel other than an American vessel; or (13), (14) Repealed. Pub. L. 93–259, §§9(b)(1), 23(b)(1), Apr. 8, 1974, 88 Stat. 63, 69. (15) any employee employed on a casual basis in domestic service employment to provide babysitting services or any employee employed in domestic service employment to provide companionship services for individuals who (because of age or infirmity) are unable to care for themselves (as such terms are defined and delimited by regulations of the Secretary); or (16) a criminal investigator who is paid availability pay under section 5545a of title 5; (17) any employee who is a computer systems analyst, computer programmer, software engineer, or other similarly skilled worker, whose primary duty is— (A) the application of systems analysis techniques and procedures, including consulting with users, to determine hardware, software, or system functional specifications; (B) the design, development, documentation, analysis, creation, testing, or modification of computer systems or programs, including prototypes, based on and related to user or system design specifications; (C) the design, documentation, testing, creation, or modification of computer programs related to machine operating systems; or (D) a combination of duties described in subparagraphs (A), (B), and (C) the performance of which requires the same level of skills, and who, in the case of an employee who is compensated on an hourly basis, is compensated at a rate of not less than $27.63 an hour; or (18) any employee who is a border patrol agent, as defined in section 5550(a) of title 5; or (19) any employee employed to play baseball who is compensated pursuant to a contract that provides for a weekly salary for services performed during the league's championship season (but not spring training or the off season) at a rate that is not less than a weekly salary equal to the minimum wage under section 206(a) of this title for a workweek of 40 hours, irrespective of the number of hours the employee devotes to baseball related activities.