What’s the Law? Are You an Independent Contractor or Employee?
It’s estimated that by 2020, 40 percent of the U.S. labor force will be freelancing. With freelancing and independent contractor status comes a world of freedoms for the employee, but this might also trigger employment law issues and violations of your rights.
According to the Department of Labor (DOL), it’s a “problematic trend” how many people are wrongly classified by their employers as independent contractors. The Fair Labor Standards Act (FLSA) applies the term “employ” in a very broad sense. If employers are using “independent contractors” as a means for cost control they may be in for a surprise. On this issue the DOL asserts, “Most workers are employees under the FLSA.” This statement makes the DOL’s opinion regarding the likelihood they will find in favor of classifying workers as employees whenever possible very obvious. It wants more employees to be afforded protection under the Act.
July’s misclassification Guidance from the Department of Labor came shortly after the department’s much anticipated reworking of FLSA’s overtime regulations and a request for an increase in the minimum wage. The DOL wants to ensure workers are not left unprotected. While the department provides the guidelines, an employment attorney is your best bet for ensuring those rights are upheld.
Worker Misclassification in Florida
Some states have enacted legislation recently that allows for further protection of independent contractors. In Florida, the knowing misclassification of a worker is a felony. Florida uses the Florida Reemployment Program Assistance Law and 10 factors to determine if someone is an employee or a contractor. They include:
The extent of control the employer has over how the project is done.
The worker having a business that separate from that of the employer.
Whether the worker is supervised or not.
The skill required in the project.
Who supplies the equipment (employer or worker).
The length of time the person is employed.
Whether the worker is paid by the job or for his time.
Whether the work provided by the worker is a key, and unwavering, component of what the employer offers as a product or service. If the business would succeed or fail based on this work being completed, the worker is more likely to be an employee.
Whether the parties believe they are building an employee/employer relationship.
Whether the hiring party is a business or an individual.
FLSA Protections are Good For Everyone
The Department of Labor stated that when workers cannot avail themselves of the protections from the FLSA like minimum wage, overtime payments, unemployment insurance, and workers’ compensation, the government loses tax revenue and that affects the funding of other programs.
Don’t continue to guess whether you should be classified as an employee or independent contractor. Leave the interpretation to the employment lawyers.
If you believe you have been wrongly classified as an independent contractor and you are really an employee, and thus have been ineligible for qualifying for protections under the Fair Labor Standard’s Act such as minimum wage and overtime compensation, you need someone who can address your employment rights.
Call the skilled employment attorneys at Wenzel Fenton Cabassa, P.A. today. The initial consultation is free.