Independent Contractors and Overtime

To be considered an independent contractor, the nature of your work must meet certain criteria. Most often the distinction between independent contractor and employee involves the autonomy between yourself and the company you are working for. Independent contractors do not receive benefits such as overtime wages, sick leave, vacation time, and health benefits. Companies will often misclassify their employees as independent contractors to save money on items such as payroll costs. A misclassified worker not only loses benefits and protections but may receive lower wages than company employees. If your overtime wages are affected by a misclassification, your employer could be violating the overtime laws of the Fair Labor Standards Act, and could owe you back-pay. It is estimated that as much as 7% of the workforce is misclassified as an independent contractor.

An independent contractor is usually a self-employed worker who seeks out work for themselves and works under their own discretion, without receiving direction from a supervisor, and most often they provide a good or service. An employee’s work is guided by their employer as to when, where, and how their work will be completed.

Agreement to work for a company as an independent contractor does not qualify a worker as such. There are qualifications which must be met to qualify as an independent contractor, and agreement on employment classification between worker and company is not one of them.

What often happens when a worker is misclassified as an independent contractor is that they are not paid for the overtime work they do. They lose wages, benefits, and protection that is afforded to employees. Workers who are often misclassified include construction workers, consultants, tutors, personal trainers, lawn care workers, translators, paralegals, call center employees, restaurant workers, janitors, police officers, and packaging plant workers.

If you believe you have been misclassified as an independent contractor, and are owed unpaid wages from your employer, contact the overtime lawyers at Dunham & Jones to review your case. Dunham & Jones will seek the unpaid wages that you are owed.

It is important to call or fill out our contact form immediately.  Wage disputes are very complicated, so contact us even if you think you do not have a claim.  Many of our clients did not think they had a wage issue and after our review we found that they, in fact, did have a substantial claim.  Our wage evaluation is free and confidential.

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Common Overtime Questions from Independent Contractors


I work for a company who hired me as an independent contractor, but I am treated like an employee. What are my rights?

Your exemption status is determined by the Fair Labor Standards Act, not by your employer. Independent contractor status is contingent upon the permanency of the working relationship, the degree of control the worker has, the degree of independence the worker has from the company, and the investment of the contractor’s equipment. Independent contractors use their own equipment, can have several working relationships with different business simultaneously and are not directly supervised. If this does not sound like you, then you may actually be an employee who is misclassified as an independent contractor.

Non-exempt employees are entitled to minimum wage and overtime when they work more than 40 hours in a workweek. If your employer is inaccurately exempting you under the Independent Contractor exemption, you do have the right to have your status changed. Non-exempt employees are protected by the Fair Labor Standards Act, even if you are currently misclassified as exempt.

The problem with being misclassified as an independent contractor is that you technically do not have rights to minimum wage standards and may not be eligible for unemployment benefits if you lose your job. Your employer may have misclassified you to pay fewer taxes, or to prevent paying you for overtime.

If your employer has intentionally misclassified you as an independent contractor, they are not only liable to pay back your unpaid wages, but they could also be responsible to pay damages. Even if your misclassification was not done intentionally, you can still recover your unpaid wages, including any overtime that was not given.

There are time limits on recovering unpaid wages, so it is important to call our offices as soon as possible to meet with an hour and wage attorney to examine your claim. Wage disputes can be complicated, and you should contact us even if you think you do not have a claim. Many of our clients did not think they had a wage issue and they recovered thousands of dollars. Our evaluation is free and confidential. Call now or fill out a contact form to schedule your evaluation.

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How do I know if I’ve been reclassified as an independent contractor?

If your employer has told you that you have been reclassified as an independent contractor, there are some issues you need to be aware of.

Independent contractors are generally considered self-employed, and have tax obligations that are different from an employee of a company. Independent contractors set their own hours and use their own equipment. If your employer is still setting your schedule, telling you where to work, and supervising your work, then it is likely you are still an employee.

However, being classified as an independent contractor will cause you to lose your protections under the Fair Labor Standards Act, so it is important that you are properly classified. Independent contractors are not entitled to overtime wages, nor are they required to be paid a minimum wage. They lose benefits and workplace protections. Ultimately, you may be losing thousands of dollars in overtime wages as a result of misclassification.

Your employer may have purposefully misclassified you as an independent contractor, but you can make a claim for back pay. Claims for unpaid wages can be honored as far back as three years in some circumstances, but there are time limits on when these claims can be made.

For help with your claim, contact our offices to schedule an evaluation with one of our overtime attorneys. The consultation is free and confidential. You can call or fill out the contact form found on this site.

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