A common method employers utilize to cut down on costs and maximize profits are to hire independent contractors, rather than employees. The benefit to the employers is they are not required to provide benefits, withhold social security taxes, provide supplies to complete the projects the contractor is hired for, or provide the same insurance to contractors they are required to provide to employees. The costs of employment to the employer can be significant, creating an incentive for employers to game the system and misclassify you as an independent contractor rather than an employee.
What is an Independent Contractor?
Independent Contracts, let's call them "ICs," are different from employees in which they engage in their business activity as a separate entity from the employer and are largely left to their own personal judgment and skill in how to complete a job. An IC is a person or business that provides a specific service to another company or person for the purpose of creating a desire result. Common IC roles include graphic designers, freelance writers, construction workers, consultants, photographers, roofers, SEO specialists and many more. The benefit to being an IC is the flexibility and control over how you work, to include how long you wish to work and what jobs you would like to take or decline without feedback from the "employer." The only direction and control the employer should give you is the desired result to produce.
I knew all of that. So, can I sue the employer for Overtime?
This depends on whether you were misclassified as an IC when you should be hired as an employee. For the very basics, ask yourself the following questions:
1. Am I free from managerial control?
An IC has the right to act as their own boss and can perform the service however they like. If the "employer" is dictating your methods, what tools you use, your schedule, when you can take breaks, what vehicle you can drive or any other aspects of your service, you are likely misclassified as an IC when you should be an employee and can bring a claim for overtime, missed meal and rest periods among other claims.
2. Am I performing the same job that the "employer's" company performs?
For example, if the employer is in the business of servicing water heaters, and you have been hired as a water heater technician to service the water heaters of the clients of that business, you are effectively doing exactly what the Company does. To be properly classified as an IC, you must perform duties outside the scope of the company's course of business. If you are doing their job for them, you should be an employee, and you are entitled to meal and rest periods, overtime, to include double time, and many other benefits.
3. Am I Operating an Established Business that Performs the Kind of Work I Have Been Hired For?
This one can be confusing. It is not crucial that you have a registered business with the secretary of state, but do you run your own business; and does your business specialize in this type of work? If not, you were likely misclassified as an independent contractor and can absolutely bring claims against your employer for overtime and many other wage and hour issues.
Wait, there are some exceptions to these rules.
- Creative Artists;
- Distributing sound recordings or other music;
- musicians and musical groups for single engagement live performance events;
- referral agencies;
- web design;
- tutoring; youth sports coaching;
- caddying (Is there a Big Golf lobby?);
- animal services;
- dog walking and grooming;
- transportation (limited execptions);
- real estate appraisers and many more
It looks like I have been Misclassified, what do I do?
First, preserve any and all communications between you and the company. This is crucial to assist yourself and an attorney, if necessary, in determining your IC or employment status, and what claims you may have.
Next, review the contract between yourself and the Company to ensure that the relationship was in fact misclassified as an IC. If you are an employee and haven't received your fair wages and breaks, your path to justice is much more clear.
Contact an attorney to help you determine your legal options and the full extent of your claims.
Prepare to file a civil claim against your employee for your financial losses. This may go beyond just overtime and breaks, to include reimbursements for tools used in the completion of the project, your benefits, insurance and possibly others.
How do I prevent this from happening again?
Ensure that you have an employment agreement in place and watch out for the signs that you have been misclassified. Ask yourself the three questions above and demand your rights as an employee from the employer. The attorneys at Miller Wilmers APC, based in Los Angeles California have the expertise in handling misclassification lawsuits and can help you determine whether or not your claim is still valid. Contact our office for a free consultation.
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