Millions of Employees are Misclassified as Independent Contractors.
The Bureau of Labor Statistics (BLS) estimates that over 10 million workers in the United States, which is more than 7% of the workforce, are classified by companies as Independent Contractors. The Labor Department estimates that 30 percent of companies misclassify employees as independent contractors. If you believe you are one of them, read on.
What is the Effect of being an Independent Contractor Under the FLSA?
The effect of being an independent contractor is that you are responsible for paying your own FICA taxes, keeping track of expenses, plus any equipment you use to do your jobs. They are not paid overtime pay because they are paid fixed rates for the work, or only paid for work done during certain hours, or for a certain number of hours in a week. Unlike employees, independent contractors don't get sick days, vacation time, overtime pay, or health benefits.
What is the Effect of being an Employee Under the FLSA?
Employees have payroll taxes taken out of their checks. They get sick days, vacation time and are entitled to overtime pay even if they work for a salary. Employees are also entitled to health benefits under the law if the business has more than four employees. They are also supervised in the way they perform a job, and given instructions while they work.
How the Law Applies if You are an Independent Contractor or an Employee
Independent contractors are sometimes actually employees, rather than contractors. In the field of wage and hour law, this is referred to as a misclassification. As referenced above, this is no slight problem; millions of workers are currently misclassified as independent contractors through the country including cities like Dallas, San Antonio, El Paso, Brownsville and Houston.
The law looks at several criteria when determining whether you are an employee or a contractor.
- How much control the employer has over how and when the job is done. If you are given a deadline and left alone to do the job, you could be considered an Independent Contractor. If the employer has line bosses and/or supervisors to direct the work, you may be an employee.
- Whether your profit opportunity or loss depends on your managerial skills. If you make your money by meeting deadlines on jobs and getting the job done quickly so you can get a new contract for another job, whether for the employer you currently work for or another, you may be considered an independent contractor.
- If you go to the job site, whether a construction site or a dedicated worksite, like a call center, and you have a supervisor or you are an hourly or salaried worker, you may be considered an employee.
- Whether your duties are performed for the employer's benefit on an ongoing or permanent basis.
- How much investment you have in the tools and equipment you use to do your job, and
- Whether your work is an integral part of the employer's business.
Watch this video on independent contractors to get more information on independent contractors and overtime pay.
What to Do if You Believe Your Employer Has Misclassified You as an Independent Contractor
Current Department of Labor estimates tell us that approximately 45 percent of people working as independent contractors are actually employees under the Fair Labor Standards Act. A good employment law attorney can help you figure out whether you are a contractor or an employee. If you have been misclassified, you may be entitled to back pay, back overtime pay, double damages, and your attorney's fees under the FLSA. No single factor above will determine whether you are a misclassified employee. Usually, this determination will be made by more than one of the criteria, as well as the majority of the evidence between you and your employer. If you believe you have been misclassified contact a Texas labor law attorney today to get the wages you're entitled to under the law.
If you believe you have been misclassified as an independent contractor contact a Texas labor law attorney today to get the wages you're entitled to under the law. A good labor law attorney can help you understand the Fair Labor Standards Act and Texas Employment Law, and they can help you decide if legal action is the right thing in your circumstance. The company will have lawyers on their side. You should have a good employment law attorney on yours. Our firm has represented workers in major Texas cities, including: Dallas, Austin, San Antonio, Houston, El Paso, Fort Worth, Arlington, Corpus Christi, Plano, Garland, Lubbock, Irving, Laredo, Amarillo, Pasadena, Brownsville, Grand Prairie, Mesquite, and more.