Does 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: