Misclassification of Independent Contractors
Have you been denied overtime pay? Do you feel you are a victim of wage theft? The law is on your side.
Wage and hour claims due to wage theft are all-too-common in the workplace. You may be entitled to overtime pay under the Fair Labor Standards Act (FLSA) even if you are labeled as an independent contractor.
The question is whether you are truly independent, or whether you are an actual employee of the company. Employees are entitled to overtime; independent contractors are not.
An independent contractor is a person engaged in his or her own business. An employee is one who “follows the usual path of an employee” and is dependent upon the business that he or she serves.
In 2015, the US Department of Labor issued an Administrative Interpretation outlining the several factors to consider in determining if a worker is an employee or an independent contractor. The DOL concluded that most workers are employees and not independent contractors.
The Economic Reality Test and Employment Law
There is no simple answer to whether a person is an employee or an independent contractor. Each situation is unique. The Economic Reality Test gives some guidance to whether you are an employee or an independent contractor:
- If and how much of your work is a major part of the employer’s business?
- Do you play an integral role in the business? Do you perform the primary type of work that the employer performs?
- How long and how permanent is the relationship between you and your employer?
- How long have you worked for the same company?
- What is your investment in facilities and equipment of the business?
- Are you reimbursed for expenses, tools, supplies, etc? Do you use your own tools or equipment?
- How much control do you have over your hours and the work you do?
- Who decides the schedule? Who is responsible for quality control? Do you work for any other company? Do you have a separate business site
- What opportunities are there for you to benefit from profits or take on loss?
- Do you purchase your own insurance or bonding? Can you earn a performance bonus?
- How much skill do you need to perform the job?
- Does the position require little or no training, or is the position highly skilled?
If a business exercises sufficient control over you and has established an employer-employee relationship, you are entitled to protections under FLSA, including overtime pay for every hour worked beyond 40 hours in a work week.
If you believe you may have been misclassified as an independent contractor, call Bohrer Brady for a free consultation. We will listen to your concerns and provide honest and informed feedback about whether or not you have a case.
Wage Theft Lawyers
The attorneys at Bohrer Brady work hard for working people. Wage theft can happen in a lot of different ways.
Cases we handle include, but are not limited to:
Employers can save significant amounts of money by classifying employees as “exempt” and thereby not paying them overtime. Unfortunately, many employers misclassify employees for that reason — taking advantage of their employees’ hard work without having to pay them the wages they are due.
Requiring employees to work off the clock is a win for businesses — employees further the company’s interests without costing it a dime. Requiring off-the-clock labor without pay, however, is wage theft, and it is illegal under the Fair Labor Standards Act (FLSA).
Pay for Training
Employers often require orientation, training for specific tasks, or training related to issues like sexual harassment. That’s fine—unless they expect employees to attend training without paying them for their time and efforts. If this has happened to you, it is wage theft, and it is important to consult with an experienced employment law attorney.
At Bohrer Brady, we are determined advocates for whistleblowers — people who have reported their employers for partaking in unfair and illegal activities. Our clients are courageous people who have witnessed fraud, discrimination, harassment, wage theft, and other unfair and unlawful employment practices and took a stand by reporting those activities to the authorities. Many of our clients have suffered retaliation in the workplace for telling the truth about their employers.
Have you been fired, demoted, harassed or otherwise unjustly treated at work for reporting unlawful activity? The law is on your side. Employers cannot retaliate when employees blow the whistle on unlawful or unfair activity. If you suspect you have been retaliated against at work, it is important to consult with our experienced employment law attorneys in Baton Rouge. We help people nationwide who have faced retaliation in the workplace.
Unpaid Overtime (FLSA) Claims
Have you been paid for the overtime you have worked or all the wages you have earned? Many employers require employees to work off the clock or misclassify workers as salaried to avoid paying overtime. If you have questions about your right to overtime pay, or if you feel you have unpaid wages, talk to the unpaid overtime lawyers at Bohrer Brady LLC.
Industry-Related Employment Law Claims
Oil Field Worker Claims
Have you been denied overtime? Many companies in the oilfield industry improperly pay their employees’ salaries, day rate or per diem to avoid overtime pay. Some companies treat employees as independent contractors, even though they are legally employees.
Home Health Worker Claims
If you are a home health worker and are not directly paid by patients or their families, you are entitled to receive unpaid overtime as far back as January 1, 2015, when a new regulation became effective.
Extradition Agent Worker Claims
If you have worked as an extradition agent or prisoner transportation guard or officer and were paid a day-rate or salary but no overtime pay for working beyond 40 hours in a work week, you may be entitled to overtime wages.
If you and your employer have not agreed to a fixed schedule for sleep periods at the same time every day, you may be entitled to compensation for any sleep periods that have been deducted from your pay.
Healthcare corporations and companies often attempt to trim their costs by misclassifying healthcare workers as independent contractors, failing to pay for training or per diem expenses or denying overtime. Federal law has outlined specific rules to protect healthcare workers, including nurses, first responders, nurses’ aides, and other healthcare providers. You may be entitled to compensation for theft of wages.
Day Rate Employees
Day-rate employees are often denied overtime pay, even though they are entitled to receive it. The Fair Labor Standards Act (FLSA) permits an employer to pay non-exempt employees on a day-rate basis, but the day rate cannot include or build in overtime pay.* Thus, an employee must be paid overtime for every hour worked over 40 hours in a work week.
If you were paid a day rate but not overtime, contact Bohrer Brady employment law attorneys in Baton Rouge for a free initial confidential consultation. You may be entitled to damages.
Schedule a Free Consultation
To discuss your situation, contact us via email or call us toll-free at 1-800-876-3911.