Phil Gibbons, Charlotte, NC, employee rights lawyer, can help independent contractors recover unpaid overtime. Call 704-612-0038.

Many state and federal laws are in place to protect employees all across the country. However, these laws do not extend to independent contractors. If you believe that your employer misclassified you as an independent contractor to avoid paying you overtime, you may be able to file a lawsuit against him or her to recover the compensation you deserve.

Independent contractor laws are complex, but an independent contractor misclassification lawyer in Charlotte at Gibbons Leis, PLLC can help. Call today: 704-612-0038.

What is an independent contractor?

Independent contractors are essentially self-employed people who perform services that an employer does not control. Employers typically hire independent contractors for short-term projects and do not have supervision over the way they complete their work.

Under the Fair Labor Standards Act (FLSA), there are certain conditions that distinguish a contractor from an employee. These are the factors employers use to determine whether to classify a worker as an employee or an independent contractor. Many of these factors have to do with the relationship between the worker and the employer. The factors include:

Is the work the contractor performs an essential part of the business?

If the employer’s business heavily relies on the work performed by the worker, the worker is likely an employee. Independent contractors are more likely to be in business for themselves.

Do the worker’s managerial skills affect his ability to make money?

If the worker is acting in a supervisory role (e.g., hiring workers, investing in equipment, etc.), and if his managerial skills impact his chances to earn profit or lose money, he is likely an employee not an independent contractor.

How much control does the employer have over the worker and what type of control does he have?

If the worker does not work under the employer or client’s control, he is more likely to be an independent contractor. However, both employees and independent contractors can work under minimal supervision. Working from home or setting work hours does not necessarily indicate that the worker is an independent contractor.

Who is investing in the facilities and equipment of the business?

If the worker invested in the business and faces a risk of loss, she may be an independent contractor. Courts will compare the worker’s investment to the employer’s investment to determine if she is in business for herself. However, merely investing in equipment to do the job does not necessarily indicate an independent contractor role.

Is the worker taking steps to be independent?

Independent contractors are more likely to exercise their own judgment and use their skills to operate independently. Employees are more economically dependent on their employer.

As you can see, the laws surrounding independent contractors are very complex.

Phil Gibbons has 20 years’ experience in the employment law field and has in-depth knowledge of the requirements for independent contractor classification. This experience allows him to analyze employment contracts and determine whether your employer hired you as an independent contractor from the start or has misclassified you.

Why would an employer classify someone as an independent contractor instead of an employee?

There are many benefits for employers to classify a worker as an independent contractor, but not many for employees. However, the law does not allow employers to misclassify an employee even if that employee agrees to be a contractor.

Some reasons employers misclassify employees as independent contractors:

Reduced Costs

Employers typically have to provide benefits, office space, and work equipment for employees, while independent contractors may not receive any of these things.

Employers may also have to pay workers’ compensation insurance, a portion the employee’s Social Security and Medicare taxes, and state unemployment compensation insurance.

Employers also do not have to pay independent contractors overtime for hours worked beyond the 40th hour in a workweek.

Staffing Flexibility

Employers can hire independent contractors for a specific project and let them go when the job is over. Letting an employee go may be more complicated and involve costly court battles.

Less Likely to Face Litigation

Employee receive certain rights (e.g., minimum wage, protection from discrimination, FMLA leave) under numerous federal and state laws. Because independent contractors do not have many of these rights, employers often prefer to hire contractors.

What should I do if my employer misclassified me?

No matter the reason, an employer cannot lawfully classify an employee as an independent contractor. If you believe your employer misclassified you and you are owed overtime wages, you can file a lawsuit against him or her.

In order to prove your case, you will need to establish that:

  • You were an employee under the FLSA
  • You were misclassified as an independent contractor
  • You were not paid overtime wages as a result of this misclassification

If you can prove misclassification, you can hold your employer liable for damages.

Note: Under the FLSA, you must file suit within two years of the misclassification, but this statute of limitations can be extended to three years for a willful violation.

Possible Resolutions

If your employer illegally classified you as an independent contractor, you may be able to recover the following damages:

  • Back overtime wages: You can recover unpaid overtime wages for the time your employer wrongfully classified you as an independent contractor if you were not paid 1.5 times your regular rate of pay.
  • Liquidated damages: You may recover liquidated damages (double the amount of unpaid wages) in lieu of interest.
  • Attorney’s fees, court costs

If you have been a victim of independent contractor misclassification, you may have missed out on overtime wages that were rightfully yours. Gibbons Leis, PLLC has handled numerous employment misclassification claims and can help you successfully build a case against your employer.

Contact us today for a free consultation: 704-612-0038.