Some employers intentionally misclassify employees by calling them "independent contractors" or "contract labor" in order to avoid paying them overtime wages. This is because federal overtime law only applies to "employees," not independent contractors.
An employer, however, cannot deny an employee overtime pay merely by labeling a worker an "independent contractor." Whether a worker is actually an independent contractor is a legal issue and depends on a number of factors.
Chances are good that you are an "employee" entitled to overtime pay--even if your employer calls you an "independent contractor"--if:
- Your employer tells you when, where, and how to perform your work.
- Your employer provides you with necessary equipment and tools to perform your work [e.g. truck, office, office equipment, computer, Internet, cell, etc].
- Your employer requires you work at your employer's workplace or at some other location determined by your employer.
- Your employer provides you training or requires you to attend employer-sponsored training.
- Your employer requires you to personally perform services. You are not permitted to hire a helper or assign your work duties to be performed by someone else.
- You are required to dedicate your full-time efforts to your employer's business.
- You do not operate as an independent business or under a DBA or assumed name certificate.
- Your employer requires you to provide regular oral or written reports about your work progress to a supervisor employed by your employer.
- Your employer pays you by the hour, not the job or project.
- You perform services for the employer for an extended period of time.
In addition, chances are good that you have always been an "employee" entitled to overtime pay under federal and Texas overtime law if your employer reclassifies you as an "employee" after recently calling you an "independent contractor," and your job duties and the nature of your relationship with the employer did not change.
Dallas overtime lawyer Barry Hersh explains overtime rights in plain English and aggressively represents employees misclassified as independent contractors in overtime pay lawsuits. Hersh Law Firm is available to pursue unpaid overtime claims for employees all over Texas, including Dallas, Fort Worth, Houston, Austin, El Paso, and San Antonio. To submit your claim for a free evaluation, contact us here.