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Top Wage Lawyer Reply: As A Short Haul Truck Driver, Am I Entitled To Overtime Pay?

On Behalf of | Apr 24, 2014 | Wage: Minimum Wage, Wage: Overtime |

Best Ohio Overtime Wage Attorney Answer: Am I being misclassified as an independent contractor? Should I really be classified as an employee? What should I do if I am not being paid for all the time that I am working? How do I find the best overtime employment lawyer in Ohio?

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One of the big issues that our wage and hour lawyers constantly face is the problem of employee misclassification – telling non-exempt employees that they are exempt or independent contractors. Under the Fair Labor Standards Act (“FLSA”), all non-exempt employees in the United States must be paid at least the federal minimum wage and overtime pay at time and a half for all hours worked over 40 hours per week. Misclassified employees, regardless of whether the misclassification was a mistake or intentional, are entitled to back-wages and other benefits pursuant to the FLSA.

Today, let’s focus  on the common practice of misclassifying workers as “independent contractors” or “1099 contractors” instead of classifying them properly as employees. By using the independent contractor misclassification, these employers are trying to avoid paying overtime, and other expenses such as taxes and worker compensation costs.

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But, courts will look to the substance of the relationship instead of the labels slapped on by employers.  The court’s review will focus on the level of economic dependence.   In Usery v. Pilgrim Equipment Company, Inc., the Fifth District Court of Appeals explained the test to be used:

Five considerations have been set out as aids to making the determination of dependence, vel non. They are: degree of control, opportunities for profit or loss, investment in facilities, permanency of relation, and skill required. No one of these considerations can become the final determinant, nor can the collective answers to all of the inquiries produce a resolution which submerges consideration of the dominant factor–economic dependence. See Mednick v. Albert Enterprises, Inc., 508 F.2d 297 (5th Cir. 1975). The five tests are aids–tools to be used to gauge the degree of dependence of alleged employees on the business with which they are connected. It is dependence that indicates employee status. Each test must be applied with that ultimate notion in mind. More importantly, the final and determinative question must be whether the total of the testing establishes the personnel are so dependent upon the business with which they are connected that they come within the protection of FLSA or are sufficiently independent to lie outside its ambit.

As a result of failing this wage classification test, Pacer Cartage, a California logistics company, has been ordered to pay $2,214,496.39 in restitution, attorney’s fees, and interest to short-haul truck drivers it illegally misclassified as independent contractors.  By misclassifying the drivers as independent contractors instead of properly as employees, Pacer did not pay the workers for time spent waiting at the port to pick up a load and reimbursements for job expenses, among other things.  The decision provided: “The Defendant considered the Plaintiffs to be independent contractors; however, the amount of control exhibited by the Defendant over the Plaintiffs was to such a degree that the Defendant knew or should have known that the Plaintiffs were employees.”

Labor group studies have revealed that there are 49,000 port truck drivers misclassified nationwide.  This equates to approximately two-thirds of the port truck drivers are losing wages and benefits that they are entitled legally entitled to. Are you one of them?

If you believe that your employer is not paying you all of your wages for all of your lawfully earned overtime compensation at a rate of one and half times your normal wages as requires under the Federal Fair Labor Standards Act or Ohio Minimum Fair Wage Standards laws or you are an nonexempt employee that has been misclassified as exempt or independent contractor, contact the attorneys at Spitz, The Employee’s Law Firm today for a free and confidential initial consultation.  Or, maybe you are being misclassified as an independent contractor. The wage and hour lawyers at Spitz, The Employee’s Law Firm will provide you with the best options for your overtime pay dispute situation.  If you even think that you may be entitled to overtime pay that you are not being paid, call 866-797-6040.


The materials available at the top of this overtime, wage and hour web page and at this employment law website are for informational purposes only and not for the purpose of providing legal advice. If you are still asking, “Am I entitled to overtime?”, “Does my job have to pay me for …”, “My paycheck is not right…” or “What do I do if…”, the your best option is to contact an Ohio overtime attorney to obtain advice with respect to FLSA questions or any particular employment law issue. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at the top of this page or through this site are the opinions of the individual lawyer and may not reflect the opinions of Spitz, The Employee’s Law Firm, Brian Spitz, or any individual attorney.

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