|
Orlando,
Florida Overtime Lawyer / Attorney
What if I am an
independent contractor and not an employee? Am I
still entitled to be paid for working overtime?
(Back to Questions)
Employers' misclassification of employees for
purposes of overtime is not limited to
executives, administrators and professionals.
Many workers are classified as "independent
contractors" when they should really be
classified as employees subject to overtime pay.
Manipulation of working relations by employers
seeking to avoid employment regulations is not
uncommon and there are a growing number of
workers who toil in the gray area between
"employee" and "independent contractor."
The Fair Labor Standards Act defines "employee"
as "any individual employed by the employer." 29
U.S.C. § 203(e)(1). "To employ" under the FLSA,
means "to suffer or permit to work." 29 U.S.C. §
203(g). An "employer" includes "any person
acting directly or indirectly in the interest of
an employer in relation to an employee." 29
U.S.C. § 203(d).
The Supreme Court has held that courts should
apply these terms in light of the "economic
reality" of the relationship between the
parties. Goldberg v. Whitaker House Co-op.,
Inc., 366 U.S. 28, 33, 6 L. Ed. 2d 100, 81 S.
Ct. 933 (1961). The factors in this economic
realities test, although not exhaustive,
include: (1) the degree of control over the
manner in which the work is performed; (2) the
worker's opportunity for profit or loss
depending on his managerial skill; (3) the
worker's investment in equipment or materials,
or his employment of helpers; (4) whether the
service rendered requires a special skill; (5)
the degree or permanence of the working
relationship; and (6) whether the service
rendered is an integral part of the employer's
business. Donovan v. DialAmerica, 757 F.2d 1376,
1382 (3rd Cir. 1985) (quoting Donovan v. Sureway
Cleaners, 656 F.2d 1368 (9th Cir. 1981)). The
economic realities test is not mechanical or
formal in its application. Instead, "it is the
totality of the circumstances, and not any one
factor, which determines whether a worker is the
employee of a particular alleged employer."
Baystate Alternative Staffing, Inc. v. Herman,
163 F.3d 668, 675 (1st Cir. 1998). The economic
realities test looks to the specific facts of
each case to determine whether an entity is an
"employer." Rutherford Food Corp. v. McComb, 331
U.S. 722, 91 L. Ed. 1772, 67 S. Ct. 1473 (1947).
Therefore, a court will address all factors
except those related to profit and loss, special
skill, and worker's individual investment,
because no FSLA case has found any of these
factors significant as to whether a temporary
employment agency is an "employer."
(Back to Questions)
For a confidential
consultation regarding potential employment
dispute cases, contact the Law Office of N. James
Turner, Esq., P.A. at
(407) 422-6464 or email
us by utilizing our confidential
submission form.
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