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My Boss Refuses To Pay Overtime Because I’m Classified As An Independent Contractor. I Need A Lawyer!

On Behalf of | Aug 14, 2015 | Wage: Minimum Wage, Wage: Overtime |

Ohio Overtime Wage Theft Attorney Best Answer: Can I sue if my employer misclassifies me as an independent contractor and refuses to pay me overtime? What factors determine if you are an independent contractor versus an employee? Do employers have to pay overtime compensation to independent contractors?

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Are you an employee or independent contractor? Unfortunately, it might not be an easy answer and this issue has be the subject of a lot of our wage and hour attorneys‘ blogs. (See Employee or Independent Contractor? Your Employer May Be Misclassifying You.; Top Wage and Hour Lawyer Reply: What If My Job Misclassifies Me As An Independent Contractor?; Am I Being Misclassified As An Independent Contractor?; and Am I An Employee Or An Independent Contractor? Best Ohio Wage Lawyer Reply). These misclassification games have been played out in a lot of industries by employer looking to steal wages from its workers (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.)

Rather than a simple test, most jurisdictions employ a factorial test ranging from a few to a few dozen factors that Courts use to determine whether you are an employee, entitled to overtime compensation and other benefits under the FLSA, or an independent contractor, entitled no none of those benefits or protections.

Specifically, the Fair Labor Standards Act (“FLSA“) requires that covered, nonexempt employees be paid at least the federal minimum wage of $7.25 per hour for all hours worked, and then pay the employee time and one-half their regular hourly rates for hours worked for every hour worked over 40 hours per week. The FLSA provides that employers who violate the law are liable to the aggrieved employees for their back wages and an equal amount in liquidated damages. After that, the employer still has to pay the employees’ reasonable attorney’s fees and costs. Liquidated damages are paid directly to the affected employees.

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So what factors are used to determine the employee vs. independent contractor status? Well, the New Jersey Supreme Court recently applied simplified “ABC test” to determine a worker’s status under the law. In Hargrove v. Sleepy’s, LLC, the New Jersey Supreme Court, answering a certified question from the Third Circuit Court of Appeals, used the “ABC test” to determine whether a worker is an “employee” or “independent contractor.”

According to the Court:

The ‘ABC’ test presumes an individual is an employee unless the employer can make certain showings regarding the individual employed, including:

(A) Such individual has been and will continue to be free from control or direction over the performance of such service, both under his contract of service and in fact; and

(B) Such service is either outside the usual course of the business for which such service is performed, or that such service is performed outside of all the places of business of the enterprise for which such service is performed; and

(C) Such individual is customarily engaged in an independently established trade, occupation, profession or business.

Notice the “and” after paragraph B. This is key as the court held that “the failure to satisfy any one of the three criteria results in an ‘employment classification.’”

According to the court, “In order to satisfy part A of the ‘ABC’ test, the employer must show that it neither exercised control over the worker, nor had the ability to exercise control in terms of the completion of the work … Part B of the statute requires the employer to show that the services provided were ‘either outside the usual course of the business . . . or that such service is performed outside of all the places of business of the enterprise. … [Part C] of the test calls for an enterprise that exists and can continue to exist independently of and apart from the particular service relationship. The enterprise must be one that is stable and lasting — one that will survive the termination of the relationship.”

The “ABC test” is highly favorable test to those who are seeking “employee” status. Indeed, it is the only such test that begins with the presumption that the worker is an employee and puts the burden on the employer to establish independent contractor status. It will be interesting to see whether the “ABC test” is used by other jurisdictions to answer work status questions regarding FLSA claims.

Do you have questions about overtime pay or other wage and hour issues? If so, the best course of action is to call the right attorney at 866-797-6040 to schedule a free and confidential consultation. 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.


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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