Can the company withhold my pay until I sign a waiver since I am on outside salesperson?
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Answer:
Under the legal theory of respondeat superior, an employer may be held vicariously liable for the negligence of employees. Employers are generally only liable for acts of employees that fall within the scope of their job duties. However, there is case law which allows a victim to sue employers directly for their failure to monitor their employees, or failing to check them out before hiring them, or for failing to fire them after learning of their questionable conduct.
One of the most important considerations in determining whether someone is an independent contractor or employee is the degree of control exercised by the company over the work of the workers. An employer has the right to control an employee. It is important to determine whether the company had the right to direct and control the workers not only as to the results desired, but also as to the details, manner and means by which the results were accomplished. If the company had the right to supervise and control such details of the work peformed, and the manner and means by which the results were to be accomplished, an employer-employee relationship would be indicated. On the other hand, the absence of supervision and control by the company would support a finding that the workers were independent contractors and not employees. Whether or not such control was exercised is not the determining factor, it is the right to control which is key.
Another factor to be considered is the connection and regularity of business between the independent contractor and the hiring party. Important factors to be considered are separate advertising, procurement of licensing, maintenance of a place of business, and supplying of tools and equipment by the independent contractor. If the service rendered is to be completed by a certain time, as opposed to an indefinite time period, a finding of an independent contractor status is more likely.
An indemnification agreement in which one party promises to make another "whole" by paying any loss another might suffer. A waiver or release gives up a right, such as releasing one from his/her liability for harm or damage that may occur from performing under a contract, or participating in an activity.
A release and waiver of liability may be used to protect a business from the foreseeable damages that may occur in the scope of being employed to perform a service. A release form will generally be upheld as long as the contract for services is entered into freely and the damage isn't caused by an intentional, willful, or reckless act.
I am prohibited from giving legal advice, this service provides information of a general legal nature. It will be a matter of personal judgment whether you wish to sign the release or not, based on all the facts and circumstances involved. it is possible the contractor may not be liable under a theory of vicarious liability if you are an independent contractor. Some of the considerations, among others, may include whether the contractor could be responsible for problems such as improper instructions, materials supplied, faulty design, etc.
