You Are Called an Independent Contractor, But You May Be An Employee Who Is Entitled to Overtime Pay

The Fair Labor Standards Act and many state laws require employers to provide premium pay (one and a half times the regular hourly rate) to employees for all hours over 40 hours in a workweek. Independent contractors are an exception to this rule, and therefore, are not entitled to overtime pay. However, employers often misclassify workers as independent contractors. This can happen accidentally when an employer does not know the legal factors of what makes a worker an independent contractor versus an employee. It can also happen intentionally, as part of employer’s plan to minimize business costs and avoid its responsibilities to pay legally required wages and withhold payroll-related taxes. This is an issue that is frequently litigated byovertime lawyers.

For a worker to truly qualify for independent contractor status under the law, the relationship between the employer and the worker must meet certain requirements. For example, an independent contractor normally has indicia of being truly “independent” of the employer, such as their own business entity, business license, customers/clients other than the employer (i.e. other separate sources of revenue), and equipment. The fewer of these facts that are true for the indpendent contractor, the more likely they are to be an employee in the eyes of the law. Also, the crux of any true independent contractor relationship is that the contractor has the ability to control the manner and means of their own work. If the employer dictates how and/or when the work is to be done, the so-called independent contractor has likely beenmisclassified.

There are several common misconceptions about independent contractors. For example, some believe that an independent contractor relationship exists merely because the worker is paid through a 1099 Form (versus a W-2) and/or because the parties refer to the worker as an independent contractor, through a written agreement or otherwise. The fact is that both are typically false indicators of independent contractor status, as they go more to the parties’ designated form of the relationship rather than the underlying substance. The law looks to the actual nature of the relationship, rather than superficial labels created by the parties themselves.

If you work as an independent contractor, you may really be an employee who has been misclassified by the employer. Further, if you work more than 40 hours per week, you may be entitled to overtime pay for the last two or three years under federal and/or state law. In any event, you should contact a St. Louis overtime lawyerto determine your rights under the law.