[wiaattorneys] FW: Commission Only Sales Jobs or Independent Contractor Opportunities -- Three Questions

  • From: "Mason, Paul (LABOR)" <Paul.Mason@xxxxxxxxxxxxxxxxx>
  • To: "John L. Yeary" <jyeary@xxxxxxxxxxxxxxxxxx>
  • Date: Thu, 29 Sep 2005 12:00:18 -0400

John - This is in response to your questions concerning providing
services to independent contractors through the job service system.
Although it is implicit in the stated purpose in the regulations, I
don't see anything that prohibits it.  We were asked the same question
by one of the WIBS.  I think you raised the issue if it could be done on
a fee-for-service basis.  Basically, our existing policies have not
allowed it although they are dated.  Our research indicates that the
Wagner-Peyser grant used to not allow charging of fees to supplement
program income but now does allow it for certain purposes beyond what is
covered by the grant.  It's not always clear what is part of the core
grant and what can be considered in addition to the services required
under the grant so these issues might be problematic.  The program staff
have expressed some concerns about the types and scope of orders that
would potentially be placed by independent contractors. By the way,
America's Job Bank has the following statement:  "There must be an
"employer-employee" relationship. A wage must be provided. Our
acceptance of commission only and independent contractor positions are
subject to the policy of the state in which you are located.  In
general, these types of relations do not meet the "employer-employee"
relationship."  Did you find anything else out?


From: O'Keefe, Tim (LABOR) 
Sent: Wednesday, September 28, 2005 4:51 PM
To: Sewell, Valerie R (LABOR); Mason, Paul (LABOR)
Cc: Kelly, Mary (LABOR)
Subject: RE: Commission Only Sales Jobs or Independent Contractor
Opportunities -- Three Questions

It states in our Community Services Manual dated 9/27/96, Section 3050,
that we should not accept job orders where social security taxes are not
paid by the employer.  I am not sure if that has been updated.  The
answer to the question on servicing independent contractor positions was
pulled from the CSC Manual.  


From: Sewell, Valerie R (LABOR) 
Sent: Wednesday, September 28, 2005 3:50 PM
To: Mason, Paul (LABOR)
Cc: Kelly, Mary (LABOR); O'Keefe, Tim (LABOR)
Subject: Commission Only Sales Jobs or Independent Contractor
Opportunities -- Three Questions

Other than Wagner-Peyser is clearly structured to provide services to
employers, I can't find a specific prohibition against listing
independent contractor openings or commission-only sales positions.


Wisconsin job order policy states:


State law requires that all employees be paid at least minimum wage for
all covered employment regardless of the method of compensation.  A job
order should clearly state the method of compensation:  salary, salary
plus commission, straight commission (also known as commission only),
performance based, incentive, or piecework.  To be listed on JobNet, all
job orders must provide total compensation of at least the minimum wage
for any hours worked or spent in required training.  Federal, state, and
local-municipal laws and ordinances apply.  Apply the higher or most
stringent law when there is a conflict.


Jobs that pay straight commission cannot be included if they only pay
when a product is sold, and do not guarantee the worker at least a
minimum wage for the hours worked.  Employers should be informed at the
time of listing that the minimum wage law applies.


If a job listing indicates that a draw against commission is received,
the job can only be listed on JobNet if the employer guarantees minimum
wage for the hours worked or spent in required training after the draw.
A draw is usually compensation that has to be paid back to the employer
by being subtracted from future commissions.


Q.1  So I'm wondering if this same policy might be applicable in NYS
(all employees must be paid at least minimum wage)?



Wisconsin also had job order policy pertaining to Independent Contractor


The purpose of the public labor exchange is to facilitate employment.
Job orders will only be accepted that offer employment opportunities
where an employer-employee relationship will exist.  Independent
contractor opportunities are self-employment, which represent business
opportunities, rather than employment .  The individual is responsible
for paying his/her own quarterly income taxes, disability insurance in
lieu of Worker's Compensation, Social Security taxes, Unemployment
Insurance taxes, and other such costs of doing business.  Such requests
cannot be accepted as job orders.


The regulatory citations mentioned were:


20 CFR 651.10, 20, 30 and 50 and USC 29 Section 49 (Wagner-Peyser Act)


20 CFR 651.10 still exists and includes a definition for "employer", but
there is no longer any 20, 30 or 50.  


Q. 2  Is there a way that you can find out what these old regulations
stated?   I'm wondering if they explicitly prohibited listing
independent contractor opportunities (that might tell us something if
these regulations were recently deleted), and


Q. 3  Would you interpret that the intent of Wagner-Peyser (which is
FUTA funded) was to provide services to job seekers and employers?  Is
it implicit that job orders should be listings for employers seeking


Aside from this I would really worry about opening the public job bank
to including "business opportunities" - you can just read all the junk
in the classified ads of your local newspaper -- "Stuff envelopes at
home and earn $20,000 a year etc."   Where would you draw the line?
What about Amway, Tupperware etc?  Can't imagine we would want to go
there.  And if a customer took one of these business opportunities
listed as a "job order" , couldn't they file a complaint with us?


And I gave you a copy of the AJB language stating it expected an
employer-employee relationship (but deferred to States' policy).




The specific question that we received from the Chautauqua Business
Services Team was:


In terms of job orders, can we post jobs that are commission-based or
independent contractors?  If not, why not?


The draft answer provided was from our procedure (I dropped off copy
with you so I'm not going to type all that here).


Maggie's comment was:  I am unclear why we don't accept job orders from
those seeking independent contractors.


Thank you!!








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  • » [wiaattorneys] FW: Commission Only Sales Jobs or Independent Contractor Opportunities -- Three Questions