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Can My Boss Avoid Overtime Pay By Calling Me An Independent Contractor? I Need The Best Wage Theft Attorney In Ohio!

On Behalf of | May 5, 2016 | Wage: Minimum Wage, Wage: Overtime |

Best Ohio Overtime Attorney and Top Minimum Wage Lawyer Answer: What can I do if my employer has classified me as an independent contractor, won’t pay me overtime, and is paying me below minimum wage? How do I sue my company for wage theft?

overtime, time and a half, wages, wage theft, Employment, Lawyer, attorney, law firm, Ohio, Cleveland, Columbus, Cincinnati, Toledo, employer, employee, Fair Labor Standards Act, What is in a name? Sometimes a name or title means a lot. You may feel really good when your boss promotes you to manager. However, if that promotion does not come with a raise and the boss also tells you that you no longer get paid for overtime at all, you might not like the new title – especially if you are still doing the same job. Out wage theft lawyers have blogged about this before. (To read more on our previous employment law post on managerial classification see, Are Managers Entitled To Overtime Pay? Call The Right Attorney; Should I Be Paid Overtime Even If I’m A Manger? Lawyer Reply; Do Assistant Managers Get Overtime Pay? Call The Right Attorney; and Overtime Attorney Top Answer: I’m A Manager. Can I Get Paid For Overtime At Time And A Half?).

That is not the only name game that employers have used. As experienced FLSA attorneys, we have come to expect a lot from greedy employer who will do any to exploit their employees just to save a couple of bucks. Our dedicated wage theft attorneys have also written extensively about employers’ latest trick of classifying employees as independent contractor so that these employers can refuse to pay their workers decent wages under the Fair Labor Standards Act (“FLSA“). (To read more on our previous employment law post on independent contractor classification see, Can My Boss Not Pay Me Overtime By Calling Me As Independent Contractor? I Need The Best Lawyer Wage And Hour Lawyers!; My Boss Refuses To Pay Overtime Because I’m Classified As An Independent Contractor. I Need A Lawyer!; and Am I An Employee Or An Independent Contractor? Best Ohio Wage Lawyer Reply).

FLSA, wage and hour, independent contractor, misclassified, best, top, Brian Spitz, my job, my paycheck, I, pay, exempt, nonexempt, how do I, what do I do, you, yourIn our previous blog posts, our wage and hour lawyers explained that even if your employer classifies you as an independent contractor, you may still be regarded as an employee, making you eligible for protection under FLSA. As the United States District Court of the Southern District of Ohio recently held, “A company’s self-serving label of ‘independent contractor’ means little to [a] Court’s analysis of employment; the Court must look at the “economic reality” of the relationship to determine whether an individual is “dependent upon the business to which they render service.” In other words, whether or not an employer is an independent contractor can only be shown by looking at the relationship between the employer and the supposed independent contractor. To this end, courts apply the six part “economic reality” test. A vivid example of the use of this test can be found in Charles Comer, et al., Plaintiffs, v. DIRECTV, LLC, et al, where the Court prevented Direct TV from using the “independent contractor” label to deny its employees minimum wages. In applying the test, that court held the following:

The first factor—the permanency of the relationship between the parties—weighs in favor of treating the technicians as employees. The technicians allege that DIRECTV orchestrated the Provider Network, and, in some cases, was the sole client of the HSPs. Although DIRECTV did not have the power to directly hire and fire the technicians, the technicians allege it set hiring criteria for the HSPs and set the requirements for how the technicians were to perform their work, which the HSPs would then enforce. Technicians received a unique “Tech ID Number” from DIRECTV and checked into DIRECTV’s SEIBEL system, which it used to assign work orders to the technicians. DI-RECTV paid technicians per job and issued chargebacks to their pay in a variety of circumstances; in other words, DIRECTV and the technicians had an ongoing cycle of credits and debits on the technicians’ account. These allegations indicate the relationship between DIRECTV, the HSPs, and the technicians was fairly permanent and unlike an independent contractor relationship.

The second factor—the degree of skill required—weighs in favor of treating the technicians as employees. Keller, 781 F.3d at 807. To analyze this issue, the Court considers whether “profits increased because of the `initiative, judgment[,] or foresight of the typical independent contractor,’ or whether his work `was more like piecework.’“ Id. at 809 (quoting Rutherford Food Corp. v. McComb, 331 U.S. 722, 730 (1947)). While the technicians’ jobs do require some mechanical skill, they allege that DIRECTV “mandates particularized methods and standards of installation.” The HSPs supervised the technicians and enforced DIRECTV’s standards. And while the technicians could marginally increase profits because of their own initiative and efficiency, their work is “more like piecework than an enterprise that actually depended for success upon the initiative, judgment or foresight of the typical independent contractor.” Rutherford, 331 U.S. at 730. This factor—the degree of skill required—weighs in favor of treating the technicians as employees.

The third factor—the worker’s investment in equipment or materials for the task—cuts both ways. Keller, 781 F.3d at 807. The technicians were “required to purchase supplies necessary to perform installations.” But, the technicians would also use equipment that belonged to DIRECTV and was warehoused by the HSPs. This factor provides equivocal guidance.

The fourth factor— the worker’s opportunity for profit or loss, depending upon his skill— also cuts both ways. Keller, 781 F.3d at 807. Technicians could be “charged-back” for substandard work, and some performed more installations per week and made more money than others, (Compare FAC at ¶ 109 (plaintiff Comer “paid $1600 per week”) and ¶ 133 (plaintiff Reinhart “paid $600 per week”). However, the technicians could never change the prices they charged for their services; DIRECTV set the prices. And in Keller, in an almost identical situation, the Sixth Circuit found this presented a jury question. Id. at 813. While the allegations cut both ways, the facts alleged are more characteristic of an employment relationship.

The fifth factor—the degree of the alleged employer’s right to control the manner in which the work is performed—weighs in favor of considering the technicians to be employees. Keller, 781 F.3d at 807. The technicians allege sufficient detail about the level of control exercised by DIRECTV to state a plausible claim that they were DIRECTV employees. Here, “the degree of the alleged employer’s right to control the manner in which the work is performed” was substantial. Id. DIRECTV controlled what work was done and when it was done through its SIEBEL database system, which assigned schedules and dispatched technicians to particular work orders. Technicians were required to check in with DIRECTV at the start of a job and when they finished. DIRECTV required technicians to hold themselves out as DIRECTV personnel: DIRECTV required its insignia displayed on the technicians’ uniforms and vehicles. The HSPs were the supervising middle-men in this arrangement. In summary, DIRECTV—directly and through the HSPs—controlled what work the technicians performed, how it was done, the standards to which it was done, how much work the technicians could do, and the prices they could charge for and receive from that work.

The sixth factor—whether the service rendered is an integral part of the alleged employer’s business—weighs in favor of treating the technicians as employees. Keller, 781 F.3d at 807. “The more integral the worker’s services are to the business, then the more likely it is that the parties have an employer-employee relationship.” Id. at 815. Without technicians installing their satellite dishes, DIRECTV could not sell its product. Therefore, the sixth factor indicates that the economic reality was that the technicians were employees.

As the Direct TV case illustrates, even if your employer claims that you an independent contractor and are not entitled to be treated as an employee, the “economic reality” may be that you are being improperly classified. If you are an employee who is being cheated out of overtime and/or minimum wage by your employer with this unfair classification game, you don’t have to sit back and accept such wage theft. You work hard and deserve to be paid for it.

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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