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BLOG-Photo-ConstructionWorker.jpgDoes your employer call you an “independent contractor” but treat you like an employee? If so, you could be entitled to overtime. Under the Fair Labor Standards Act (“FLSA”), employers are not required to pay independent contractors time and a half for overtime. However, employers routinely misclassify workers as independent contractors as opposed to employees to cut down on overtime pay. This is against the law. So-called independent contractors who are actually employees are entitled to overtime pay at a rate of one and a half times their regular rate of pay for all hours over 40 in a workweek.

The Supreme Court and the Department of Labor have instructed courts to look at several factors to determine whether a worker is a true independent contractor or an employee entitled to overtime. Note: all of these factors do not need to be present in order for the courts to find a worker an employee as opposed to an independent contractor. The courts look at the situation as a whole. The Supreme Court factors include:
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On October 4, 2012, Martin & Martin filed a potential collective action against Horizon Satellites, Inc. alleging that the company misclassified its dispatchers / customer service representatives as independent contractors to avoid paying them overtime. Horizon Satellites contracts with DISH Network Satellites to install, maintain, and repair satellite systems in several states including Georgia, South Carolina, North Carolina, and Virginia. The suit was filed on behalf of dispatchers / customer service representatives who allege that they consistently worked more than 40 hours per week but were not paid one and one half times their regular hourly rate as required by the Fair Labor Standards Act (“FLSA”).

The FLSA requires companies to compensate employees one and one half times their regular hourly rate for all hours over 40 in a workweek. However, there is an exception to this rule for true independent contractors who are not automatically entitled to time and half for overtime pay. However, many times, employers misclassify employees as independent contractors as a mistake or on purpose to avoid paying overtime. Under the law, in order for a worker to qualify as a true independent contractor, certain requirements must be met. Most importantly, the independent contractor must have the ability to control the manner and means of their work (i.e. the time they start working each day, the time they stop working each day, which days they work, how they perform their duties). If not, the worker may be misclassified as an independent contractor and entitled to overtime pay.

The lawsuit Martin & Martin filed on behalf of the dispatchers / customer service representatives alleges that the company misclassified the workers as independent contractors and paid the workers a set amount per day or a set amount per completed call but did not pay the workers an overtime rate for hours over 40 in a workweek. The lawsuit seeks to recover overtime pay for the workers plus liquidated damages (also called “double damages”).

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