I ran across this article and immediately thought of the best buy audit. let me know what you think or anybody with some legal expertise in this area please comment along with source information.

3. Control. If you perform services for someone and they control what you do and how you do it, you're probably an employee. An employer controls the time, place and manner of your work. That means if they watch your hours, make you come in the office, make you ask permission to take time off, or supervise your assignments, you may be an employee. Independent contractors do the work where, when and how they choose. Nobody tells them what order to do the job in, what hours to work, or when they can take off.
[jobs.aol.com]

The pricing audits, satisfaction surveys, and door-hanging jobs strike me as employee work, which is why I don't do them. I'm interested in mystery shopping only.

There's a whole lot more to the determination of employee versus contractor than that paragraph.

One component is being able to work for multiple companies in the same industry simultaneously; we can, employees can't. Being able to pick and choose our jobs is another component; we can, employees can't.

Someone hiring a contractor is certainly able to tell them when the job needs to be done. you don't want your roofer coming after dark to pound those nails. Obviously if a business needs to be audited it needs to be done when they are open.

Anything you're not comfortable about doing, you are free to pass it up. Which is another factor that says we're not employees.

Yeah, illegally treating an employee as a contractor would be more like hiring a receptionist or cashier, for example, and issuing them a 1099 instead of a W-2. Asking you to come in at a certain time to do a store audit doesn't come close to qualifying as illegal.

Really, when I say "employee work" I mean "not at all what I signed up for." I signed up to mystery shop, not work as a marketing grunt.

Edited 1 time(s). Last edit at 05/04/2015 05:52PM by af517.

actually an employee can work for multiple companies....i was in a mall food court and over heard an employee say he worked at another food court restaurant in the morning and then the other in the afternoon....

I once worked for 3 companies part time/per diem as an employee at the same time (they were all the same type of work).

@af517 wrote:

The pricing audits, satisfaction surveys, and door-hanging jobs strike me as employee work, which is why I don't do them. I'm interested in mystery shopping only.

But the majority of my merchandising projects pay more per hour than MS'ing per hour. The exception may be some of the high-end retail shops but they require extensive commentaries in their reports.

The biggest difference to me: If they don't like your work, they don't pay you. as in independent contractor.

As an employee, they MUST pay you, if you did the work.

the only company that frequently straddles the line is the one that does
best buy. Requiring you to be there at x time and leave by x time and requring
you stay in the store for at least 5 hours even if you are done, requring what
device you use to enter the report and a host of other things puts them on a fine line.

I know the paragraph is not a end all be all. I would say I agree with straddling the line statement but at the same time I understand the time frame as the company does not begin to get busy until after the "Must leave by time". The minimum time requirement is the thing that seems to stick out the most.

Another way is we get paid by the job, and we manage our time the way we want to. Employees are typically tied to a location for a set number of hours, and are paid by the hour.

Or they are salaried and worked to death.

@Sybil2 wrote:

But the majority of my merchandising projects pay more per hour than MS'ing per hour. The exception may be some of the high-end retail shops but they require extensive commentaries in their reports.

Really? Most of the merchandising projects I've seen pay around $10 an hour and at the most $15 and that doesn't include travel time. I rarely even get out of bed for twice that mystery shopping.

Of course we are IC's and I wouldn't have it any other way. We choose the MSC's we want to offer our services to, the type of shops we want to do, when we want to do them and are in some cases, able to negotiate the rate of pay. Each MSC has a clearly defined payment schedule and we can accept it or choose not to work for them. If the MSC insists that the shop must be done at a specific time and in a specific way we can choose to perform it accordamce with their needs or opt not to accept the assignment.

In my opinion, that makes us IC's

I ran into this situation while working for Habitat for Humanity. If someone controls the time, place and presents a job description, you are an EMPLOYEE.

Believe what you want. but it's a lot more complicated than that.

"One component is being able to work for multiple companies in the same industry simultaneously; we can, employees can't." dspeakes

Really ? Just don't sign a NCA.

Edited 1 time(s). Last edit at 05/05/2015 02:29AM by jrt2015.

Let me put that another way. If you work for Company A and go get a second job working for their competitor, likely you will find yourself no longer employed by company A when they find out about it. NCA or not. Most NCA's aren't enforceable anyway but most employees are at-will and can be fired for any reason at all.

When I worked as an employee for a company that required a NCA, they required me to sign it before they would give me the offer and the new hire paperwork. I'm sure they would have fired me in a heartbeat if they found out I was stepping out on them. Later, I worked as a contractor for a company in the same industry. They asked me to sign one, and I laughed and told them they weren't giving me enough work to justify it. I'm still getting work from them years later.

Getting benefits and half your taxes paid is great, but there are still advantages to being an IC.

Based on the criteria we use in architecture and engineering in our contracts, I don't think mystery shoppers are ICs, but I'll gladly work doing it until determined otherwise.

We could debate this for ever, but BBA have more items in the IC column that the employee column.

"3. Control. If you perform services for someone and they control what you do and how you do it, you're probably an employee. An employer controls the time, place and manner of your work. That means if they watch your hours, make you come in the office, make you ask permission to take time off, or supervise your assignments, you may be an employee. Independent contractors do the work where, when and how they choose. Nobody tells them what order to do the job in, what hours to work, or when they can take off."

This is my understanding of the law. We have complete control regarding the job. Just like any other job that needs to be filled by a subcontractor, the job is put out for bid or with a set price. The requirements for the job are listed. You have the option of taking the job or turning the job down. This gives you complete control on whether you accept the terms, decline the job or negotiate different terms. An employee cannot do this. When they are at work, they are told what to do and cannot decline to do it with out risking their job.

If you put time constaints on a job they should justified. Like observing shift changes or monitoring to check if some one is doing things their supposed to do at certain times. Telling some one they have to be somewhere for set amount of time regardless of the time it takes you means they control more than what is justifiable. In my opinion anyways.

Hi,

There are always exceptions to the rule. Someone brought up as we can work for numerous mystery shopping companies. During an audit you MUST allow the place being audited the chance and opportunity to conform. Also, they hired the marketing research company under this pretense. It is not an audit from the government or governing agency. Another thing is employees must work a specific schedule. When you audit I have seen you can choose specific days within a time frame.

I was a Realtor in two different states at different times. You could definitely not do that job with this type of attitude. You must generally do "Floor Time". But it is for your own good. You are an independent contractor who works for free until you earn a commission. We have minimum wage laws in this country. There are exceptions to this even when you are an employee. Waitresses in New Jersey get $2-$3 and hour plus tips. I did one of these jobs a decade ago and got less than minimum wage. This is perfectly legal AND conforms to minimum wage laws at the same time. Congress has exceptions to the minimum wage laws. This is one of them. I looked it up and saw the employer has to make up the difference in New Jersey. This was not true in 2000. The year 2000. Not the 1970's.( I choose this year because women started getting real rights in the workplace during the 1980's.)

One last note is maybe some people do not have what it takes to compete in some of these jobs. I personally do not do audit and apartment jobs because of the learning curve. Also I am not investing in a business wardrobe for such menial money. Although I see the potential with business and marketing college students who would build their wardrobes. They would want these multiple projects for resume padding, experience in the real world, time management within their schedule, networking possibilities and leadership potential. They would get paid and get all this in return. Other people have the resources readily available and experience to expedite the work quickly. They get the $20-$40 hourly.

There are so many imbalances in our system. Although I love living in capitalism because you can compete and be more. The key is knowing yourself and skills to assess what works for you. This saves time. Remember the richest person is constrained by time. Time is invaluable. As an independent contractor the company benefits from your output. You benefit in your time. You give yourself the invaluable asset and not the company.

@Irequim wrote:

If you put time constaints on a job they should justified. Like observing shift changes or monitoring to check if some one is doing things their supposed to do at certain times. Telling some one they have to be somewhere for set amount of time regardless of the time it takes you means they control more than what is justifiable. In my opinion anyways.

If I want tile work done in my bathroom but will only be home from 8 to 4 on Tuesday, I have a right to require this time in the contract. This does not make the tile installer my employee. If you can decline a job, you have complete control. You can say no and an employee cannot.

If you TELL me i HAVE to stay 8 to 4 but i finish by noon do I get to keave at noon? And say you were the owner of a apartment complex and because i finished at noon i would not allowed to do any more work for you (Sound like being fired?) Is the question I pose.
Dont get me wrong, I dint want to be an employee. Just wanted a civilized well debated and informative discussion so as to better enhance my own and others knowledge who may wonder the same thing.

@Irequim wrote:

If you TELL me i HAVE to stay 8 to 4 but i finish by noon do I get to keave at noon? And say you were the owner of a apartment complex and because i finished at noon i would not allowed to do any more work for you (Sound like being fired?) Is the question I pose.
Dont get me wrong, I dint want to be an employee. Just wanted a civilized well debated and informative discussion so as to better enhance my own and others knowledge who may wonder the same thing.

You make some good points. I have no answers.

- If a person is on-site after a job is finished, is he/she loitering? What are the local ordinances regarding loitering? If we are not allowed to say why we are on-site and have only a non-disclosable explanation ("because the msc says so", we might not be a in a good position legally.

- How many assignments with minimum on-site times can be performed in such a way as to drag out the tasks to meet the time requirements? If it were not necessary to be at one site for such a long time, would the independent contractor have time to perform additional work in the same time frame? Should we prefer jobs with naturally occurring durations?

- ?

It all depends on the terms of the contract. The point of the discussion is whether you are an I.C. or not. The fact you can turn down the job with no repercussions meets the test of control. If you do not want to be there at the time they request then you do not accept the job and you are not there at that time. If you are an employee, you have to be there or you get fired and you do no additional work for that company. As an I.C., I can turn down one job and still accept another job at a later time.

The info the OP posted is very ambiguous.

I worked for MCI as both a IC and an employee. As a IC I agreed to work the same hours as the employees did. I was paid hourly, for every minute I worked. As an employee I earned a salary, non-exempt, no overtime.

I was told what to do by my MCI boss under both positions. Of course as a IC my consultant company paid me and whatever benefits I had with them. I was at will, if terminated no severance was available. As an employee I had lower pay but better benefits. Still didn't keep them from laying me off, it just gave me some severance and unemployment benefits.

The one time I was purely a 1099 consultant I did have some flexibility on negotiating hours, but still had specific obligations I agreed to abide by and fulfill as part of my contract.

There are dozens and dozens of factors that the courts and the IRS have weighed when determining employment status. Only a very, very few could, alone, sway the decision. It is the preponderance of the factors that counts. So, naming a couple of items that one thinks "should" make the difference, just will not make a determination.

I am not an attorney, but I have a PhD in Industrial Relations and Labor Economics and considerable experience in analyzing employment status issues.

Are we really an I.C.?

The most correct answer is that there no definitive answer, but only a series of factors to guide the decision in each and every case. Those that suggest 'control' is the prime factor are definitely on the right track, but it remains to be determined in every and every case. The IRS states, "There is no “magic” or set number of factors that “makes” the worker an employee or an independent contractor, and no one factor stands alone in making this determination. Also, factors which are relevant in one situation may not be relevant in another."

Turning from theory to reality, the industry classifies mystery shoppers as I.C.s and has done so for decades. The IRS has no problem with that determination, at least for the industry as it is normally operated. Based on that history I think it is safe to say that the mystery shopping industry is regarded as using I.C.s rather than employees. If you want a simple answer that works for the industry and IRS, that is it.

For those that wish to delve into the intricacies of all the factors and apply them to mystery shopping in general or a certain shop in particular, the IRS has some good information. [www.irs.gov].

Good luck