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Get Help from an Independent Contractor Lawyer

At Bohrer Brady LLC, we represent employees with wage and hour claims. This includes cases related to the misclassification of workers as independent contractors, instead of employees, to avoid paying overtime.

The issue of misclassification of a worker as an independent contractor requires determining the true employment status of the worker. This involves application of the “economic realities” test adopted by the Department of Labor that examines multiple work-related facts like the length of employment, degree of employer supervision or control, and the worker’s freedom regarding how and when to work. Misclassification of a worker as an independent contractor instead of an employee, frequently results in the worker not being paid earned overtime.

Whatever your situation, we are prepared to protect your rights in this important legal matter. Contact us today for a free confidential consultation with an experienced independent contractor lawyer. We represent clients nationwide.

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Misclassification of Employees: Exempt Vs. Non-Exempt

Employers can save significant amounts of money by incorrectly classifying employees as “exempt” and thereby not having to pay them overtime. Unfortunately, many employers misclassify employees for that reason — taking advantage of their employees’ hard work without paying overtime wages. Our employment law attorneys at Bohrer Brady can help you determine your employee classification based on what your job activities and duties, not your job title.

Employees that are wrongly classified as exempt are often paid a salary, day rate or piece rate. Common examples of exempt positions include managers, professionals, and administrators who manage others’ work, interpret company policy, or supervise other employees’ work.

Often, companies will give an employee a title such as assistant manager, manager, lead, crew chief, field supervisor, foreman or supervisor, and classify that employee as exempt. However, if the employee does not have any, or limited, managerial responsibilities it may be a case of misclassification, and that employee may be owed unpaid overtime wages.

If you think your employer may be exploiting you through employee misclassification, a Bohrer Brady misclassification lawyer can help determine your rights and options.

Commonly Misclassified Positions

Employers misclassify several positions as exempt or independent contractors to avoid paying overtime or other benefits. Here are some examples:

  • IT Professionals: IT (Information Technology) professionals are often wrongly deemed exempt from overtime pay due to their specialized nature of work involving the Computer exemption, which may not apply to IT workers.
  • Inside Sales Representatives: Sales representatives may also be misclassified as exempt, particularly those who earn commission.
  • Medical Personnel: Nurses, home health aides, and other healthcare workers are often misclassified.
  • Customer Service Representatives: Customer service representatives, particularly those in call centers, are commonly misclassified as exempt. It may stem from the assumption that because their work is office-based, they are exempt. In reality, without discretionary power or managerial control, they should receive overtime pay.
  • Construction Workers: Some employers label construction workers as independent contractors to avoid legal and financial obligations. They attempt to avoid providing health insurance, paying overtime, and contributing to worker’s compensation and unemployment insurance. By doing so, they effectively shift the tax payment burden onto the workers.
  • Gig Economy Workers: The rise of the gig economy has led to many workers, like rideshare drivers or freelancers, being classified as independent contractors. The misclassification often stems from a lack of clear legal guidelines for gig workers. As a result, they miss the benefits and security accompanying employee status.

If you fall under one of these categories and think you may be misclassified, contact a Bohrer Brady independent contractor lawyer.

Independent Contractor Misclassification: Employee vs. Not an Employee

The Fair Labor Standards Act (FLSA) entitles workers misclassified as independent contractors to overtime pay. The question is whether you are truly “independent” or an employee of the company. Employees have the right to overtime, while “independent contractors” do not.

An “independent contractor” is a person engaged in their own business. An employee is one who “follows the usual path of an employee” and is dependent on the business they serve. There is no simple answer to whether a person is an employee or an independent contractor. Each contractor misclassification situation requires a factual analysis.

The Economic Reality Test gives some guidance on whether a person is 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?

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?

Reasons Why Employers Misclassify Workers

Several reasons prompt employers to misclassify workers, often leading to complex legal disputes.

Unfamiliarity with the Law

Labor laws can be complex and challenging to understand. Not all businesses have the resources or expertise to interpret them correctly. Employers might misclassify workers as independent contractors if they’re unaware of the legal guidelines.

Saving Money

Some employers intentionally misclassify employees as independent contractors to cut costs. By doing so, they avoid providing employee benefits like health insurance, retirement contributions, paid leave, and overtime.

Speak to an Independent Contractor Lawyer

If you believe you may have been misclassified as an independent contractor, call Bohrer Brady for a free confidential consultation. We will listen to your concerns, provide honest and informed feedback, and help you determine whether or not you have a case.

Contact an Independent Contractor Lawyer at Bohrer Brady LLC

Contact us today for a free confidential consultation with an experienced independent contractor lawyer at Bohrer Brady LLC. We represent clients nationwide for federal FLSA claims.


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