Some Contractors are Found to be Employees Entitled to Overtime
Employers try to avoid all responsibility under Federal Law by classifying their workers as “independent contractors.” When employers misclassify their workers as “independent contractors,” the employer typically does it to cheat their employees out of overtime. Whether an employee is an independent contractor is a fact question that depends on a variety of factors. The Fifth Circuit, which includes Texas Louisiana and Mississippi, and the Ninth Circuit, which includes the Alaska, Arizona, California and Hawaii, use the Economic Realities Test to determine if a worker is truly an independent contractor or employee. The Economic Realities Test looks to the following factors:
the degree of control exercised by the alleged employer;
the extent of the relative investment of the putative employee versus the employer;
the degree to which the “employee’s” opportunity for profit and loss is determined by the “employer;”
the skill and initiative required in performing the job; and
the permanency of the relationship.
No one factor is controlling. In general, the inquiry into whether an employer-employee relationship exists is not limited by contractual terminology, agreements, or by labels that the employer places on the parties’ relationship. Instead, the question is whether that worker is, as a matter of economic reality, in business for himself/herself.
Too often we see construction workers, manual laborers, oil field workers, drivers, and exotic dancers be misclassified as independent contractors. Sosa-Morris Neuman Attorneys at Law represent independent contractors in wage disputes. Read a case finding "contractor" welders are employees entitled to overtime here.
If you are classified as an independent contractor, you may be entitled to overtime. The Federal Wage Law has the broadest definition of employee and you may be entitled to benefits under the law.