One of the biggest aspects of the Fair Labor Standards Act (FLSA) that employers continue to violate is misclassifying workers as independent contractors rather than employees. Employers receive massive benefits by misclassifying workers as independent contractors, including not having to offer health insurance or pay minimum or overtime wages. However, the determination of whether a worker is an employee or an independent contractor is not up to the whim of the employer. While that determination, at times, is complex. Most of the time, it is as simple as whether the worker regularly works for the company and is bound by the company’s rules and policies. If so, they are employees — not independent contractors. And, as employee’s they have rights under the FLSA, including the right to minimum wage and overtime for all hours over forty (40) hours in a workweek.
One example of types of companies who routinely misclassify workers is the home health care industry. On March 14, 2022, the Department of Labor (DOL) announced a consent judgment against a home health care agency when it misclassified some of its home health care workers as independent contractors and paid the workers straight time for all hours of work meaning the workers did not receive time and one-half for overtime hours. The DOL also found that the agency did not include on-call earnings in the computation of overtime rates of pay for the workers it did pay overtime meaning the agency was paying a lower rate of overtime.
The DOL noted the significant need for essential home health care workers during the pandemic and said that “[h]ome care workers continue to deliver critical services on the pandemic’s frontlines. These workers provide people with vital assistance and help them meet basic daily needs. Without these services, many would not be able to live at home.”