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Top Wage and Hour Lawyer Reply: What If My Job Misclassifies Me As An Independent Contractor?

On Behalf of | Sep 3, 2014 | Wage: Minimum Wage, Wage: Overtime, Wage: Tipped Employees |

Best Overtime Attorney Answer: How can I tell if I am an independent contractor or an employee? Do employers have to pay independent contractors the same as employees? Do I not get overtime pay because my boss says I’m an independent contractor? How do I find the top wage lawyer in Ohio?

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The Fair Labor Standards Act and Ohio Minimum Fair Wage Standards Act require, among other things, that covered, nonexempt employees be paid in accordance with the state or federal minimum wage that also that they be paid overtime compensation for working over 40 hours per week. The key word in the above-stated sentence is “employees” because the FLSA does not provide these same rights to independent contractors. So, as you would imagine, an employer sometimes may try to avoid the requirements of the FLSA by classifying a worker as an independent contractor instead of an employees. Even your boss knows that you cannot simply slap the name independent contractor on your position and get out of paying overtime wages at time and a half. So many employers have their worker signs an agreement saying that he or she is an independent contractor. Many workers believe that if they sign such an agreement they cannot come back later and argue that they were actually employees of the company. However, most often, that is not the case and there are several other factors that come into play when making a final determination, as a matter of law, as to whether someone is an employee or independent contractor.

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Take for example, a recent overtime decision in the United States District Court for the Northern District of Illinois. According to the Department of Labor‘s press release, the Court ordered Super Maid, LLC to pay 55 workers a total of $184,505 in back wages and liquidated damages upon its determination that Super Maid violated the FLSA by misclassifying its workers as independent contractors.

Courts primarily consider three categories of factors to decide whether you are an employee or an independent contractor: (1) Behavioral factors – this considers the degree and amount of control that the employer exercises over the worker including looking at both how and where the worker performs the work; (2) Financial factors – this considers at how the job pays the worker, including whether the worker is entitled to any benefits; and (3) Relationship factors – this considers the permanency of the work relationship and whether there any contractual agreements.

Specifically, as part of the DOL’s investigation, Super Maid’s claims that the workers were merely independent contractors was proven erroneous based on several factors including, but not limited to these facts: (1) the workers had to sign non-compete agreements when they were hired (relationship), (2) they were not allowed to clean homes other than those assigned by Super Maid (behavioral), and (3) Super Maid provided training, equipment and transportation to the workers (behavioral). While financial factors did not play a large role in the determination, the strength of the evidence in the other categories demonstrated to the DOL and the Court that the workers were clearly employees under the law thus entitling them to the protections of the FLSA including minimum wage and overtime compensation. As a result, the Court determined, based on the investigation that the 55 workers were entitled to $92,252.50 in back wages, plus an equal amount as liquidated damages pursuant to § 216 of the FLSA.

Our wage and hour lawyers have blogged about misclassification before (including, trying to classify employees as exempt, strippers being misclassified as independent contractors, short haul truckers wrongly not being classified as employees, and wrongful attempts to call employees with no real authority managers to avoid paying overtime.) But, beyond these blogs we have helped hundreds of workers in Ohio and elsewhere address this problem with regard to their particular situation. 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. 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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