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Employee or Independent Contractor? Your Employer May Be Misclassifying You.

| Feb 28, 2013 | minimum wage violation, overtime time violation |

Have you ever wondered if you should be considered an employee versus an independent contractor? Do you receive W2s? 1099s? Do you work out of your home versus in an office? These factors, as well as several others may determine whether your employer has correctly classified you as either an employee or an independent contractor…and the difference could mean a lot to you as far as the wages you are entitled to under Ohio and federal law.

With the rise of wage and hour claims under the Ohio Minimum Fair Wage Standards Act and the Fair Labor Standards Act, a growing issue being analyzed is how employers are classifying their workers and whether those classifications are accurate. Indeed, recently the United States Department of Labor issued a notice requesting comment on a proposal to conduct a nationwide survey for the purpose of determining whether workers are being treated as independent contractors when they should be classified as employees. Why is this important? For starters, the difference is extremely important when it comes to working overtime hours. If a worker is a true independent contractor, unless otherwise contractually agreed, the worker is not entitled to overtime compensation under Ohio or federal law. However, if you are an employee, you are entitled to overtime compensation unless you fall under a specific exemption stating otherwise. Indeed, several wage and hour laws under both Ohio and federal law provide added protection to employees regarding wages, hours and conditions of employment, protections not afforded to independent contractors.

So what factors should you look at in determining whether you may be an employee versus an independent contractor? Generally, Courts look at three categories of factors; (1) Behavioral factors; (2) Financial factors; and (3) Relationship factors. Behavioral factors look at the degree of control that the employer exercises over the worker including looking at both how and where the worker performs the work. Financial factors look at how the worker is paid including whether the worker is entitled to any benefits. Finally, relationship factors look at the permanency of the employment relationship and whether there any contractual agreements.

Importantly, none of the factors are dispositive, instead, they are balanced and weighed by the Court. As such, just because a worker is being given a 1099 instead of a W2 does not mean that the worker is not an employee.

If you are questioning whether you are an employee versus an independent contractor or have questions about your employment relationship in general, you should contact an employment attorney who can evaluate your situation and inform you of your rights.

If you even think that your employment rights have been violated or that you might need an employment lawyer, then call the right attorney to schedule a free and confidential consultation at 866-797-6040. The Spitz Law Firm is dedicated to protecting employees’ rights and solving employment disputes.

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