The experienced Atlanta overtime attorneys at Martin & Martin routinely successfully represent workers who are improperly classified as independent contractors instead of employees entitled to overtime. Overtime attorneys, Tom Martin and Kimberly Martin, together, have decades of combined legal knowledge and experience in representing parties in cases involving the Fair Labor Standards Act (FLSA) and its classification of independent contractors and employees.What is the Independent Contractor Rule?
The FLSA applies to all employees of most employers in the country. Section 203 of the FLSA requires employers to compensate all “employees” overtime wages for all hours over 40 in a given workweek unless the worker performs a job that falls under one of the FLSA’s exemptions, e.g., executive, administrative, professional, etc. Properly classified independent contractors are not “employees” under the FLSA. In an effort to skirt their obligations, many employers wrongfully classify workers as independent contractors so that they do not have to pay overtime wages. However, it is illegal to misclassify workers as independent contractors when, in fact, the workers are employees under the FLSA and entitled to overtime.Do Companies Decide Whether Workers are Independent Contractors or Employees Under the FLSA?
No. It’s important to understand that whether an individual is an “employee” under the FLSA or an independent contractor is not dependent on what the company thinks the classification should be. Instead, the determination, is a based on a series of legal factors that courts consider.What if a Worker Signs an Independent Contractor Agreement? Aren’t They Agreeing that They are Independent Contractors?
No. Even if a worker signs an independent contractor agreement, it does not mean that they are independent contractors for the purposes of the FLSA. In fact, Atlanta overtime attorneys at Martin & Martin have successfully represented many workers who signed independent contractor agreements. A worker cannot waive away their right to overtime under the FLSA by signing an independent contractor agreement.What are the Factors that the Court uses to Determine Whether a Worker is an Independent Contractor or an Employee?
To determine whether an individual is an employee under the FLSA and entitled to overtime or whether they are an unprotected independent contractor, courts look at the “economic reality” of the work circumstances as a whole. This economic-reality inquiry turns on the following factors:
- The nature and degree of the alleged employer's control as to the manner in which the work is to be performed;
- The alleged employee's opportunity for profit or loss depending upon his managerial skill;
- The alleged employee's investment in equipment or materials required for his task, or his employment of workers;
- Whether the service rendered requires a special skill;
- The degree of permanency and duration of the working relationship; and
- The extent to which the service rendered is an integral part of the alleged employer's business.
But what do these factors actually mean? While each factor has its own legal analysis and history of litigated cases, overall, an independent contractor is typically different from an employee based on the supervision of their work and limited control in how and when they perform the work. Here are some example factors that courts have looked at in determining whether a worker is an independent contractor or employee.
Is scheduled by the company or told when to work, what days, hours, etc. to work
Decides when to work/decides their own schedule and tells the company what their schedule will be.
The employer exercises control over how worker performs job, when, where, etc.
Decides on their own how to perform the job.
Reports directly to a supervisor who tells the worker how to perform the job, gets performance reviews, etc.
Generally, works unsupervised.
Must follow company rules, policies, practices, company handbook, etc.
Limited rules apply to them.
Is trained by the employer
Is not trained by the employer.
Performs work as part of the day-to-day operation of the business.
The work performed is the type that is set apart from the work of other employees. For example, an electrician hired to perform work on part of a building is not working with the other employees in the building on day-to-day business.
May be required to wear company shirts, logos, etc.
Are not required to wear company clothing.
May be required to put company logos on their vehicles.
Are not required to put company logos on their vehicles.
Equipment to perform the job is given to them by the company. The employee does not make a significant investment in the facilities of the work.
Brings their own equipment to the job. Have made a significant investment in the facilities of the work, tools, equipment, etc.
Employer expects the worker to work on a year-to-year basis.
Hired only to perform on a one time or short-term basis.
Not permitted to hire their own employees.
Permitted to hire their own workers to work on the project.
Typically, the job is the only job the worker has. Employer could prohibit work at other companies.
Typically, the worker has multiple companies or clients for whom they perform work.
Typically, is paid a set rate of pay for the work, e.g., hourly rate, salary, tips, etc.
Pay is by the job. They can make a profit based on how good they are. For example, a painter who finishes the job a day early can work elsewhere on that day and thus, make a higher profit.
Typically, does not individually market or advertise themselves.
They may advertise their own business to the public in general.
Must perform the job tasks that are given to them.
Are permitted to decline projects without punishment.
Must stay at the job until their shift ends.
Can leave the job early if it is completed for the day.
May not have any level skill or experience.
Typically, possess high level skill and experience.
Is not incorporated
May be incorporated
Examples of recent cases in which the Atlanta independent contractor attorneys, Martin & Martin, have fought for unpaid overtime wages on behalf of individuals who were designated as or even signed independent contractor agreements include two cases against delivery service companies. One delivery driver worked for Diligent Delivery Services and several delivery drivers worked for a middle company performing work for FedEx Ground Package System. In these cases, Atlanta overtime attorneys, Kimberly Martin and Tom Martin, filed lawsuits on behalf of the drivers alleging that the companies misclassified them as independent contractors rather than employees under the FLSA and therefore, they were entitled to overtime wages.
These lawsuits, as well as other independent contractor lawsuits brought by the Atlanta overtime attorneys, include allegations that the companies:
Controlled the workers’ schedules, time to show up, time to go home;
Determined which customers to serve;
Required that the companies’ logos appear on the worker’s clothing;
Provided other logo branded items to the workers to display;
Provided some equipment to perform the job; permitted very lengthy durations (years) of work to the drivers;
Prohibited the drivers from hiring workers to perform any of the tasks; and
Applied workplace rules, policies, and practices to the workers including, write-ups, discipline, etc.What Types of Damages are Available Under the FLSA to a Worker When a Company Misclassifies them as an Independent Contractor Instead of an Employee?
If a company misclassifies a worker as an independent contractor instead of an employee, the worker is be entitled to all lost wages including minimum wage pay and overtime pay for two years prior to the date of the filing of the federal complaint. In cases where the company acted willfully, the Court will permit a worker to recover three years of unpaid wages instead of two years. A worker is also entitled to liquidated damages also known as “double damages” because it is an amount equal to the worker’s unpaid wages. This means that if a worker successfully recovers $5,000 in unpaid overtime, the Court will also award them $5,000 in liquidated damages. The FLSA also allows a worker to recover attorney’s fees and litigation costs.FLSA Quiz Time Martin & Martin’s Quiz on Independent Contractor Classification
- Does the company for whom you work set your schedule;
- Do they supervise you while you perform your job duties;
- Do they require you perform your job a certain way;
- Do they have policies, practices, or rules related to your job;
- Do they require that you have specific skills or training prior to contracting you for work;
- Do they threaten to terminate or punish you if you do not “accept” work they are offering for the day;
- Are you permitted to hire workers to assist you in performing the work;
- Do they provide the tools or equipment to perform the job like portable electronic mail scanners, construction crew equipment, etc.;
- Do they require that you dress a certain way;
- Do they require that you have clothing branded with the company’s name or logo;
- Do they provide you other items branded with the company name or logo like a sign for your car;
- How long have you worked for the company;
- If you perform your duties quickly for the day, can you leave work to go to another job working for a different company;
- Can you accept work from similar or rival companies performing the same job duties;
- Are there other workers that perform the same job duties that the company classifies as “employees” and pays overtime;
- Approximately how many hours did you work each workweek over the course of the last three years; and
- How much were you paid each workweek?
Independent contractor overtime attorneys in Atlanta, Kimberly Martin and Tom Martin, are warriors as they fight for what’s right for their clients who are illegally classified as independent contractors. Not only do they fight for three years of unpaid wages, but also liquidated damages that double a worker’s recovery, and attorney’s fees and litigation costs. This means that if successful, overtime attorneys in Atlanta at Martin & Martin typically recover all of their attorneys’ fees and litigation costs from the employer – not their clients. Workers misclassified as independent contractors can be entitled to significant back pay which can lead to significant liquidated damages.
If you are or were classified as an independent contractor and want to know whether this classification under the FLSA is correct, Atlanta overtime attorneys, Tom Martin and Kimberly Martin, would be honored to speak with you about your job. Consultations with them are free and can usually be conducted on the same day you contact the law firm. You can contact them through the Contact Us page or call the firm directly.