I'm on my first job as an independent contractor, and things aren't going well. The project is way behind (not just my part, the whole enchalada!) So, the firm has send in a hired gun to whip the team into shape. He is requiring the contractors to work unpaid overtime and for the last week, I've been in training and have been informed that I won't be getting paid for any of the time I spent in training. He actually told me "If you want to get paid, you have to go to work" His attitude is I can put up with it or leave. I don't have alot of experience with contract work, but this doens't sound right to me. Not sure what my next move is.

 

You need to look at the contract he signed with you to see if he had agreed to pay you while you were being trained. If so, point that out to him and ask if you should be in training or to do the job ineffectively (or even incorrectly since you are not certain of the standards for the task).
I'm sure he would want you to do the task once correctly than to have it done twice.

 

The contract says nothing about training. I have the option of skipping training and just going to work, but then I'm equally screwed. So, I'm attending training and hope I can work something out with my manager.

PS: Contractors can be fired without cause.

 

Did he hire you knowing that you were untrained?

 

Shut up, do the work, and sue him for overtime pay after it's all done...if your reputation can take a hit like that. The big fish get rich by eating the little fish (forcing them into bankruptcy).

This being your first "job", I don't think you are going to win friends and influence people with this method. If the education is something you are willing to invest in, shut up, do the job, and don't sue him after the work is done.

Above all, remember that this is only my opinion, and sometimes I'm wrong.

 

If you want to find out if you are an independent contractor or an employee, visit the IRS's website outlining that topic .... http://www.irs.gov/Businesses/Small-Businesses-&-Self-Employed/Independent-Contractor-(Self-Employed)-or-Employee%3F

Common Law Rules

Facts that provide evidence of the degree of control and independence fall into three categories:

1. Behavioral: Does the company control or have the right to control what the worker does and how the worker does his or her job?
2. Financial: Are the business aspects of the worker’s job controlled by the payer? (these include things like how worker is paid, whether expenses are reimbursed, who provides tools/supplies, etc.)
3. Type of Relationship: Are there written contracts or employee type benefits (i.e. pension plan, insurance, vacation pay, etc.)? Will the relationship continue and is the work performed a key aspect of the business?

You need to know your relationship. Many times people are misclassified and get quite upset at tax time.

 

Probably the best thing to do is to ask the boss what you should do giving your situation. It might be that you become the gopher for everyone else for this job.
I would certainly talk to a lawyer if they don't pay you while you were in training if they had agreed to allow you to be trained.

 

You moved to take this position ,they had some need to go thru the process of

taking you aboard. If you are doing something that you really like ,the training

should be fun. Look at the associates you are going to meet in this environment.

Training is better than going thru another job search ,not knowing the outcome.

Put yourself in the persons place that is having to face you about training. Another

thing ,are you part of a group or are you being singled out alone to do this training.

Another thing ,do you need this training to do the job. You know this better than

anyone. What can you afford to do ,are there openings in your field of work.

This could turn out to be a good thing ,it could make you a more valuable to the

company after more training. You were good enough to get the position ,you need

to be good enough to stay, a little soul searching is advised.

 

In any abusive relationship, once you accept the abuse, escalation is inevitable. I'd rather eat garbage from a dumpster than let anybody abuse me like that.

Don't feed the trolls!

 

Unpaid overtime is a nogo. Unless you are on salary, you get paid for overtime in the US. Some employers will swap overtime pay for time off later, which is acceptable.

Expecting you to be on the job site and not paying you is not acceptable. Tell them this. You honestly think they're going to fire you and find another engineer willing to work for no pay? Not likely. You're there to do a job, not make friends. Stand up for yourself, tell them that you will be getting paid to work, and if they don't like that then there's a dozen lawyers that can make it infinitely more expensive.

 

No person that I have EVER known has benefited even a tiny iota from staying in an abusive relationship. Leave quickly and without regret.

 

Walk out of there. If others are being abused, they might follow your lead. When the crew starts abandoning ship, I'm sure the company will start asking why. And when the answer comes back with a resounding "because this dude is a douche", maybe they will rethink.

 

Some employers will swap overtime pay for time off later, which is acceptable.

since when? banking hours only helps the employer, despite what they will tell you. if you want the money for later when you have days off, save the damn stuff yourself. letting your boss hold onto it means you dont get the overtime difference OR the interest it will accrue over that period.

 

I have never been a contractor, but I have worked with several. The standard that I saw is they got paid for every hour they were on the job...no more, no less. They came in on the dot and left on the dot. That was what was expected; it was the tradeoff for no benefits. They knew it and we knew it. I never heard of one being asked for free hours, but I expect I know what the answer would have been.

Whatever you decide, I wish you good luck.

 

He actually told me "If you want to get paid, you have to go to work" His attitude is I can put up with it or leave. I don't have alot of experience with contract work, but this doens't sound right to me. Not sure what my next move is.

He is correct, unless your written agreement says otherwise. I haven't seen it so I don't know what it says.

It seems to me that you are taking the experience and reasonable expectations one might have - AS AN EMPLOYEE - and trying to overlay them onto a very different thing, and it won't work. You are a company selling a service, not an employee.

Generally :
When you are consulting or contracting, whatever you want to call it, you are not an employee you are a business transacting at arms length on equal footing with the company for whom you are selling your service.

If your company is not getting the job done (for whatever reason) then you should expect the client company to be very, very demanding and all those questions about overtime and non paid work and training have to be taken back to the company that you own: the contractor and not the client company.

It's not the Client's fault that you sold a service for which you had to get training to accomplish is it? Unless this is all contemplated in the agreement then you are pretty much all on your own for these considerations.


I can tell you, having run an engineering R&D department in a former career, that if I hired a contractor to perform a service, he better come to the game already expert in everything he is supposed to do. And if he has to work a thousand hours a week to get the job done, then that is his business and his problem, but it is not mine. I paid to have a thing done - period.



Back to the question of why the job is over time:
If the fault lies with the client company or any of their agents or other consultants you should be able to make the case and press them to pay you because BUT FOR their misfeasance you would have gotten it all done already. You better be dead to rights accurate when you start blaming the client company. And of course you can expect them to bad mouth you and never hire you again.

I don't know the value of your services nor do I know how much money you expect to earn being a consultant but I can tell you this:
GET A LAWYER TO DRAFT YOUR AGREEMENTS. Get one who is conversant in the business of consulting and preferably one whose done it with others in your field. There is a huge complicated arcane world of sophisticated law out there in contracts and consulting that you won't have a chance in hell learning for yourself. The good attorney will have spent years of his working career learning it, plus he's got a Doctorate in law to enable him to do that learning. Use a lawyer, it's always worth the cost.

 

He is correct, unless your written agreement says otherwise. I haven't seen it so I don't know what it says.

It seems to me that you are taking the experience and reasonable expectations one might have - AS AN EMPLOYEE - and trying to overlay them onto a very different thing, and it won't work. You are a company selling a service, not an employee.

Generally :
When you are consulting or contracting, whatever you want to call it, you are not an employee you are a business transacting at arms length on equal footing with the company for whom you are selling your service.

If your company is not getting the job done (for whatever reason) then you should expect the client company to be very, very demanding and all those questions about overtime and non paid work and training have to be taken back to the company that you own: the contractor and not the client company.

It's not the Client's fault that you sold a service for which you had to get training to accomplish is it? Unless this is all contemplated in the agreement then you are pretty much all on your own for these considerations.


I can tell you, having run an engineering R&D department in a former career, that if I hired a contractor to perform a service, he better come to the game already expert in everything he is supposed to do. And if he has to work a thousand hours a week to get the job done, then that is his business and his problem, but it is not mine. I paid to have a thing done - period.



Back to the question of why the job is over time:
If the fault lies with the client company or any of their agents or other consultants you should be able to make the case and press them to pay you because BUT FOR their misfeasance you would have gotten it all done already. You better be dead to rights accurate when you start blaming the client company. And of course you can expect them to bad mouth you and never hire you again.

I don't know the value of your services nor do I know how much money you expect to earn being a consultant but I can tell you this:
GET A LAWYER TO DRAFT YOUR AGREEMENTS. Get one who is conversant in the business of consulting and preferably one whose done it with others in your field. There is a huge complicated arcane world of sophisticated law out there in contracts and consulting that you won't have a chance in hell learning for yourself. The good attorney will have spent years of his working career learning it, plus he's got a Doctorate in law to enable him to do that learning. Use a lawyer, it's always worth the cost.

You seem to use the terms consulting and contracting interchangeably and apply both to hourly contractors; that is not the case. In my experience, hourly contractors are hired by the hour and paid by the hour. If the hiring company feels they are not getting their money's worth, they can advise the contractor and give him/her the chance to increase their value added. But essentially, the hiring company is buying hours. Consultants and some other service providers can and do sell completed jobs, but not hourly contractors.

 

If the client required the engineer to be ready by a date, the engineer should invoice the client for their time as of that date. It would be easier to prove IF there were some documentation stating such a date.

The "hired gun" can say whatever they want to say ... it still depends on what is written by the client to each of the contractors.

If you want to nuance the differences between "contractor" and "consultant" here's Webster's version ...

Definition of CONTRACTOR
1: one that contracts or is party to a contract: as
a : one that contracts to perform work or provide supplies
b : one that contracts to erect buildings
2: something (as a muscle) that contracts or shortens

Definition of CONSULTANT
1: one who consults another
2: one who gives professional advice or services :

The engineer fit's both definitions ... as does that "hired gun". Both the contractor and consultant are not employees. You can bet the farm that the "hired gun" is receiving a paycheck whether the project proceeds in a timely manner or not. The employee relationship is defined by law, and the IRS's website illustrated the discrimination between employees and contractors/consultants.

Much like the homework questions where the teacher outlines the specifications of the circuit, the client should have outlined the specifications of the work to each contractor, complete with specific completion times.

 

So here's my $0.02 worth. It will duplicate some of what's been said, but I think add a point here or there, as well.

As a consultant/contractor, you have the freedom to choose who you will and won't work for to a much greater degree than a typical employee does. That's the up side. Over time you will develop, hopefully, a list of customers/clients that you prefer to work for whenever possible and a list of ones that you would prefer to avoid whenever possible. The downside is that you build that second list by working for customers/clients that, in hindsight, you would have rather avoided.

As for whether you are a contractor or consultant, I don't know that there is much of a legal difference. I will use the term "contractor" generically. The specific nature of the specific relationship is what counts. As JoeJester has pointed out, you and everyone in town can call you a contractor or a consultant, but if you meet the employee test requirements of the IRS, then you are an employee and both parties are stuck with it.

Getting back to the nature of the specific relationship, consider the following situation and possible scenarios:

The Acme Corporation wants to develop the ability to do something -- maybe control one of their machines via a mobile app. They don't have the ability in house and do not see a compelling reason to develop one, so they choose to contract it out. They might go any of the following routes:

#1) Find someone that has significant relevant expertise and enter into a fixed-price contract with them in which they agree to deliver a working system by a certain date for a certain price.

In this case, the contractor would likely be responsible for acquiring any additional knowledge and skills on their own time and at their own expense. They would also be expected to work whatever hours are required, possibly even hiring subcontractors as needed, to deliver the final system working and on time. The nominal hourly rate for this option is probably on the higher side of the spectrum -- the contractor wants to pad their rate to provide protection against a project that runs into snags while the client is willing to pay the higher nominal rate as an insurance premium against cost overruns.

#2) Find someone that has significant relevant expertise and pay them for "time and materials" to perform the work.

This would likely be the case if neither party could come up with a time effort that bother parties could accept with a reasonable level of confidence. There would likely be a "not-to-exceed" limit on the hours or cost. The nominal hourly rate is probably lower than the option above since the risk shifts toward the client.

#3) Find someone that they believe is generally capable but that has known gaps in their knowledge or skills. They might enter into a fixed-price contract but this would be more likely to be done on a time and materials basis. In either case, the nominal hourly rate is probably considerably lower than the two previous scenarios because the client knows that it will take more hours and that there is a learning curve that has to be climbed. How much lower the nominal hourly rate is depends hugely on how that learning curve is handled

This is not as uncommon as it might seem. Sometimes there simply isn't anyone available with the right combination of knowledge and skills. This becomes more likely the more novel and unique the project becomes or the more it involves proprietary systems. Sometimes such a resource is available but it is too expensive. The details of why this route was chosen will determine the terms under which things are and are not paid for. The company may pay for training, including the contractor's time while attending the training. They may pay the direct costs associated with the training, but not the contractor's time while there. They may have training that they can provide to the contractor -- perhaps this is part of their normal in-house training for employees and perhaps it is training that they make available to others at a fee. They may allow the contractor to attend the training at no cost and may or may not pay for the contractor's time in doing so. They may provide someone, be it one of their employees or someone else that they bring in for the purpose, to train the contractor and, again, may or may not pay for the contractor's hours.

I've had contracts that included a mix of these options for different aspects of the needed training. But at least the basic terms should be considered and outlined up front in the contract, though it can leave it open to making final decisions of how to handle specific, particularly unforseen, training needs as they come up. But even the case-by-case stuff needs to be agreed to in advance of the training, not after the fact.

As for terminating a contract. In general, a contract can be terminated at either time by either party, but the consequences and remedies should be spelled out in the contract, otherwise there basically are none. Usually, if a client terminates a contract, they forfeit any right to get back anything that has already been paid while if the contractor terminates a contract they forfeit the right to get paid anything that is related to any uncompleted work. But the terms might allow the client to seek reimbursement for some or all amounts already paid, particularly in the case of a fixed-price contract.

For larger contracts (say things amounting to more than two- to three-months of effort), the contract should specify contract milestones and deliverables. This allows the contractor to be paid for the work performed and the client to be satisfied that the work is being performed and that adequare progress is being made. Generally payment is due upon acceptance of the deliverable and, once accepted, that part of the contract is a done deal -- any termination that happens subsequent to that does not change the fact that the client owes the contractor for all payments associated with all deliverables that have been accepted.

I had a couple of contracts that paid for each quarter's effort in advance with the understanding that we could pay ourselves out of the advance for hours worked but that if the contract were terminated that we had to reimburse the client for any hours not yet worked. If we worked hours that went beyond what the advance covered, that was fine and we could pay it out of the next quarter's advance but it was stipulated in the contract that if the contract were terminated by either party that payment for any such hours would be forfeited.

The advise to get a suitable lawyer to put together a decent general purpose contract for you is a good one. It can be full of boilerplate language and have options that can be checked and initialed to include or exclude so that you can easily tailor it to each job. It shouldn't cost too much because they probably already have one sitting around that only needs to be tweaked a bit.

With that in hand, then even if you need to sign a contract that the client draws up you have something to compare the terms to so as to be satisfied that you are comfortable with the risk/reward tradeoff and, very importantly, willing to abide by the terms of the contract even if it everything goes wrong.

 

I'm on my first job as an independent contractor, and things aren't going well. The project is way behind (not just my part, the whole enchalada!) So, the firm has send in a hired gun to whip the team into shape. He is requiring the contractors to work unpaid overtime and for the last week, I've been in training and have been informed that I won't be getting paid for any of the time I spent in training. He actually told me "If you want to get paid, you have to go to work" His attitude is I can put up with it or leave. I don't have alot of experience with contract work, but this doens't sound right to me. Not sure what my next move is.

Contract means..... you signed a contract.

What does it say?

usually, it says you will provide deliverables of XYZ and get paid $$$ when you do.

Period.

If your XYZ is contingent on other people doing their jobs, it can get dicey. You may not get paid until the whole package is complete.

Good learning experience for you. Always make sure your boat is never tied to somebody else's or you may end up having to do their job for them.

 

Shut up, do the work, and sue him for overtime pay after it's all done..

He is not required to pay overtime unless the contract specifically calls it out. Contractors perform as many hours as necessary to provide the contract deliverables. They take ownership of the time required as they are expected to have the expertise in the field. A customer hires them to do something because they don't have that skill or knowledge in house. Contractors can not come back and ask for more money after the deal is signed.