Massage Therapist - Contractor or Employee?

[gabodykneads4]

I've read all over the net to try and answer my own question but now I'm more confused....here is my situation:

I am a licensed massage therapist in Sarasota, FL (right to work state)...I work at a day spa and am paid 55% commission plus my tips...I believe when I was hired that I filled out a W-4....my paychecks are paid every 2 weeks and it shows that I have taxes taken out

The spa supplies me with a room and massage table sink and CD player (I don't use)...washer/dryer and detergent...sheets are available but not in good condition. I have to use Pevonia (product name) for scrubs/wraps but this is the only product that is provided for me to use (and required for me to use) for these two services

I supply all products used (oils, creams, hot stones, sheets, bolster, table warmer, essential oil, ipod and speakers, candles)

I am expected to be there 28+ hours a week. I receive health insurance and the spa pays for half of insurance. The spa does not pay or reimburse me for my products. The is a receptionist that take appointments and handles payment of services. (We had no receptionist for over 3 weeks and I ended up doing it...now I'm training the new hire). The Spa does very little advertising and there are not many clients. The Spa expects me to take the cut if a service is given at a package deal even if I did not agree to it (or in most cases assumes I will take the cut so that the spa get this client). I'm also expected to clean bathroom, take out trash etc if it need to be done. I'm also required to wear black/white clothing (as uniforms). There is not a clock to clock in and keep track of hours at work and we have not Labor Laws posted anywhere in the spa (I thought that this is required to be posted somewhere, but I could be wrong)

I called the labor board and asked if I do not make enough commission for the hours I was at the Spa (minimum wage times hours worked), does the spa have to pay me minimum wage. Short answer was yes, pay must be at least equal to minimum wage.

I brought this to the owners attention and she told me she did not have to pay minimum wage because we were contracted workers. The owner is not very business savvy and I'm sure this was her response to cover her own tail. I bring in the most amount of money to her spa almost every month. Most of the client were clients I had before working at her spa and they followed me to this spa. 75% of the rest of the clients are clients that my prior client sent to me. the remainder of clients came from walk-ins and the spa's clients. I never signed an non compete form and verbally told the owner that if given a non compete form that I would not sign it

My question is...what am I? Contractor or Employee? Any documentations/reference to back up the answer would be great also....I'm guessing I'm and employee and the owner does not want to pay back pay for the many weeks that all her employees sat at work and made $0-less that $140 a week (less that what minimum wage would pay)...anything else I might need to know before I follow up with the owner on my situation?

Thank ahead of time for any input

 

[cbg]

Right to work means you can't be forced to join a union to get work. It has nothing to do with your situation.

If taxes are being taken out of your paychecks you are an employee. Your employer is wrong.

However, you have a problem in that your state is one of the very few (it may, in fact, be the only one) that does not have a department of labor. In just about any other state you could file a claim for unpaid wages with the state, but that is not an option for you.

Since we're talking a minimum wage claim, you could file a complaint with the US DOL. I don't usually recommend that because the Feds will only support minimum wage and overtime, but in this case you're being paid less than minimum wage so you won't be losing anything by doing so.

Finally, you also have the option of filing in small claims court.

 

[gabodykneads4]

Thanks for your help cbg
I went to work today and spoke with my employer. I asked her if she would be paying me (and everyone else) minimum wage if it our commission did not equal minimum wage. Her response was that she would if I (we) worked at least 32 hrs but would not pay if I (we) worked less hours. She says that she does NOT have to pay minimum wage if I (we) do not work Full Time. So If you are part Time or less than 32 hrs that she won't pay minimum wage. I responded that I thought that the amount of hours worked did not matter and that I thought that however many hours were worked times minimum wage or commission earned (which ever greater) is what should be paid. She then brings up the fact that she pays for half of our insurance. This leads to me correcting her from yesterday. I said yes, you offer us insurance but that is a perk of being an employee and we were not independent contractors because of this and the fact we filled out w-4 and not 1099. Her response to this was (her taking taxes out) because we signed papers for them to take taxes out (that was the W-4 that said this)

How is it that people like this can run a business when they have no idea what they are doing?

I called the DOL again and the told me that minimum wage had to be paid no mater how many hours worked (Full or Part Time) but we I asked in reference to commission or minimum wage question that said I needed to speak to my state DOL...Thanks to your help I said I don't think my state has a DOL and she gave me a DOL site to look on for my state contacts. I get home and look the website up...and go figure this page was unavailable...I looked all over and found what I think may be who I need to contact for FL so I'll call Fri to see if they can help