Are You An Independent Contractor Or Employee? (hint: the DOL says most workers are employees – not independent contractors)

The Fair Labor Standards Act (FLSA) is the law that governs the pay of employees in the United States.  It requires that companies pay its employees at least minimum wage and at least time and a half for all hours over 40 in a given workweek.  In order to get around this requirement, many employers classify their employees as independent contractors.  Unlike employees, independent contractors are not entitled to minimum wage, overtime, unemployment benefits, workers’ compensation benefits, protection under the Family Medical Leave Act, Title VII, etc.  Therefore, if your company is misclassifying you as an independent contractor when you are truly an employee, you could be missing out on a lot of owed compensation and benefits.


The U.S. Department of Labor states that the general rule of thumb is “most workers are employees – not independent contractors.”  Courts look at several factors to determine if an individual is an employee or an independent contractor.  If your job fits into just one of the below “employee” categories, you may be misclassified as an independent contractor and entitled to compensation.


Do any of the below “employees” statements apply to you?


Employees: Independent Contractors:
Not allowed to hire other workers to perform job Allowed to hire other workers to perform job
Employer controls how the worker performs the work Worker controls how they perform the work
Worker typically only performs the work for one company Worker can perform similar jobs for multiple companies
Worker does not have an opportunity to make more money by working more efficiently Worker has an opportunity to make more money by performing job more efficiently
Worker uses equipment and supplies given to them from their employer Worker provides his own equipment, supplies, uniform, truck, etc.
The work performed is not a specially skilled job Worker provides a specific special skill to perform the work
Worker is employed for an indefinite period of time or for a longer period of time like other employees Worker performs the work for a shorter, set period of time
The work performed is needed to run the company The work performed is not integral to the business but more likely a specific, special job
Worker is bound by company rules like other employees
The worker is trained to perform the work by the company



If Your Employer Misclassified You As An Independent Contractor, You Could Be Entitled To Compensation

If any of the above statements in the “employee” column apply to your job, you may be misclassified as an independent contractor and entitled to minimum wage, overtime, liquidated damages, attorneys’ fees and costs.   your overtime pay at a rate of 1 ½ of your regular rate for the time period of the

In order to recover these damages, you would be required to file a lawsuit.  Overtime lawsuits can also be filed as a collective or class action which permits other similar employees join the case to recover their overtime as well.   This permits employees a way for pursuing relatively small claims together that could otherwise be too costly.

If It’s Not Right, You Have To Fight!  At Martin & Martin, our Atlanta wage attorneys successfully represent employees like you every single day.  You worked hard for your pay, let us work hard to get you what you are owed.  Please contact us online or call us at (404) 831-8721 for a free consultation.


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