Posted on behalf of Phillips Law Group on Nov 14, 2012 in Workers' Compensation
Just because your employer says you are anindependentcontractor doesn't mean you are. If you are more like an employee than an independent contractor you have been misclassifiedand you may have a right to overtime pay.
According to the U.S. Department of Labor: The U.S. Supreme Court has on a number of occasions indicated that there is no single rule or test for determining whether an individual is an independent contractor or an employee for purposes of the FLSA (overtime pay law). The Court has held that it is the total activity or situation which controls. Among the factors which the Court has considered significant are:
1) The extent to which the services rendered are an integral part of the principal's business.
2) The permanency of the relationship.
3) The amount of the alleged contractor's investment in facilities and equipment.
4) The nature and degree of control by the principal.
5) The alleged contractor's opportunities for profit and loss.
6) The amount of initiative, judgment, or foresight in open market competition with others required for the success of the claimed independent contractor.
7) The degree of independent business organization and operation.
There are certain factors which are immaterial in determining whether there is an employment relationship. Such facts as the place where work is performed, the absence of a formal employment agreement, or whether an alleged independent contractor is licensed by State/local government are not considered to have a bearing on determinations as to whether there is an employment relationship. Additionally, the Supreme Court has held that the time or mode of pay does not control the determination of employee status.
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