Are You Entitled to Overtime Compensation?

Federal and Ohio Overtime Attorneys – Bryant Legal, LLC

As your Toledo, Ohio and Columbus, Ohio overtime attorneys, workers regularly inquire about whether or not they are properly being paid pursuant to the Fair Labor Standards Act (FLSA) and Ohio law. The FLSA is complex, and it is not always easy to know whether you may be entitled to a premium for your overtime hours, which is why we welcome you to contact any of the Toledo, Ohio and Columbus, Ohio overtime attorneys at Bryant Legal, LLC to discuss your situation in more detail. There are many exemptions to the FLSA, and each has key nuances that many do not fully understand. The purpose of this post is to clarify the complex nature of the FLSA that governs the pay policies and practices of employees.

Under the FLSA (and Ohio law), everyone is entitled to overtime pay (1.5 times your regular rate of pay for all hours worked over 40 in a workweek) unless they are specifically exempted under the law. In the event you are compensated on a salary basis, you may still be entitled to overtime wages if you work over 40 hours in a workweek and your primary job duties consist of non-exempt work. For more information on whether you have been misclassified, click here.

A. The Overtime Provisions Apply to Employees (not independent contractors, unless you have been misclassified as an independent contractor)

The FLSA only applies to employees—not independent contractors. However, often times companies misclassify their workers as “independent contractors” for purposes of avoiding overtime compensation, tax obligations, workers compensation obligations, among others. Whether you are truly an independent contractor or an employee is determined by applying the test referred to as the “economic realities test.” Under this test, workers are considered employees if they are economically dependent on the employer for their income. In other words, if you work full time for your employer, you are likely an employee. For a more in-depth explanation, click here.

B. Are You Actually Exempt or Did Your Employer just mandate that You are Exempt?

There are at least 44 different exemptions under the FLSA. If one of the exemptions apply, you may not be entitled to a premium for your overtime hours. However, whether you are exempt or not depends on (a) whether you are truly paid on a salaried basis; and (b) your primary job duties. For a more in-depth explanation on whether you have been misclassified as a “salaried employee” (and entitled to overtime) or not (and not entitled to overtime), click here.

With respect to the exemptions, the most common exemptions are referred to as the “white collar” exemptions. They include the following: (1) administrative, (2) professional, and (3) executive. If any of these exemptions apply, you are not entitled to a premium for your overtime pay. As I mentioned above, each exemption requires that the employer pay the employee a salary of at least $455 per week regardless of whether you work less than 40 hours in a workweek. As such, if you make less than $455 per week even if it is labeled as a “salary”, you are likely misclassified and should be paid overtime. The other elements of these three exemptions are discussed below.

1. Administrative Exemption

The administrative exemption requires the employer to prove all of the following:

  • (a) The employee performs office or non-manual work, which is directly related to management of the business;
  • (b) A primary component of which involves the exercise of independent judgment and discretion about matters of significance.

Work “directly related to management of the business” includes, but is not limited to, working in areas such as tax; finance; accounting; budgeting; auditing; insurance; quality control; purchasing; procurement; advertising; marketing; research; safety and health; personnel management; human resources; employee benefits; labor relations; public relations; government relations; computer network, Internet and database administration; legal and regulatory compliance; and similar activities.

In general, the “exercise of discretion and independent judgment” involves the comparison and the evaluation of possible courses of conduct and acting or making a decision after the various possibilities have been considered.  The term, exercise, must be applied in the light of all the facts involved in the employee’s particular employment situation, and implies that the employee has authority to make an independent choice, free from immediate direction or supervision.

The term “matters of significance” refers to the level of importance or consequence of the work performed.  An employee does not exercise discretion and independent judgment with respect to matters of significance merely because the employer will experience financial losses if the employee fails to perform the job properly.

The key here is that the employee’s “primary duty” must be to exercise their discretion and independent judgment concerning matters of significance. Generally speaking, office workers are not exempt if their primary duty is to follow the directives of their employer.

2. Professional Exemption

The Professional exemption requires the employer to prove each of the following:

  • (a) The employee’s primary duty must be the performance of work requiring advanced knowledge, defined as work which is predominantly intellectual in character and which includes work requiring the consistent exercise of discretion and judgment;
  • (b) The advanced knowledge must be in a field of science or learning; and
  • (c) The advanced knowledge must be customarily acquired by a prolonged course of specialized intellectual instruction.

“Work requiring advanced knowledge” means work which is predominantly intellectual in character and which includes work requiring the consistent exercise of discretion and judgment. A professional employee generally uses the advanced knowledge to analyze, interpret or make deductions from varying facts or circumstances. Advanced knowledge cannot be attained at the high school level.

Fields of science or learning include law, medicine, theology, accounting, actuarial computation, engineering, architecture, teaching, various types of physical, pharmacy,  chemical and biological sciences. These occupations have a recognized professional status and are distinguishable from the mechanical arts or skilled trades where the knowledge, while of a fairly advanced type, is not in a field of science or learning. The learned professional exemption is restricted to professions where specialized academic training is a standard prerequisite for entrance into the profession.

3. Executive Exemption

The executive exemption requires the employer to prove each of the following:

  • (a) The employee’s primary duty must be managing the enterprise, or managing a customarily recognized department or subdivision of the enterprise;
  • (b) The employee must customarily and regularly direct the work of at least two or more other full-time employees or their equivalent; and
  • (c) The employee must have the authority to hire or fire other employees, or the employee’s suggestions and recommendations as to the hiring, firing, advancement, promotion or any other change of status of other employees must be given particular weight.

Even from a brief review of the 3 primary exemptions, it is not always easy to determine whether you are entitled to a premium for overtime hours. You must understand each of the above exemptions, as well as the more than 40 other exemptions. As such, it is important to speak with a Toledo, Ohio or Columbus, Ohio overtime attorney to discuss the specifics of your employment relationship to determine whether or not you are entitled to unpaid overtime wages and other compensation.

In the event you believe you have a claim for unpaid overtime, it is important to contact us immediately so that your damages can be preserved. Workers who have a unpaid overtime claim can recover 2 times the amount you are owed in overtime wages, attorneys’ fees, and costs of the litigation. Contact us today to discuss whether you have an unpaid overtime claim by completing a contact form or calling either office of Bryant Legal, LLC directly.

Non-exempt, hourly service technician challenges Camping World’s Failure to Pay Overtime Wages

Ohio and FLSA Overtime Attorneys sue Camping World for failure to pay service technicians overtime wages.

On October 17, 2017, the law firms of Bryant Legal, LLC and Coffman Legal, LLC filed a Collective Action Complaint against Defendants FreedomRoads, LLC and Sirvilla RV Centers, LLC dba Camping World (collectively “Camping World”) on behalf of a Camping World service technician and Camping World’s other similarly situated employees for Camping World’s failure to pay overtime wages. The collective action was filed to redress Camping World’s alleged failure to pay overtime wages the service technicians are entitled to under the FLSA.

The lawsuit brought by a former non-exempt Camping World service technician was brought on behalf of all current and former Camping World hourly service technicians who worked over 40 hours in a workweek. The former Camping World service technician alleges that he and other similarly situated employees: (1) were not paid one and one-half times their regular rate of pay (“overtime”) for hours worked over 40 in a workweek; (2) were not paid for all hours worked; and (3) were required to “volunteer” but did not receive overtime for the volunteer hours worked over 40 in a workweek.
The lawsuit was filed in the U.S. District Court for the Southern District of Ohio, Eastern Division (Columbus) and is titled Piner v. FreedomRoads, LLC, et al, Case No. 2:17-cv-00902.

Additional information about the collective action against Camping World may be found by contacting our office by calling 1-614-704-0546 or emailing If you have any questions about whether you are properly receiving overtime or whether you are being properly compensated for all of the compensable hours you work at the proper rate of pay, then contact our office today for a FREE consultation. If we prove a violation of the FLSA, you may be entitled to unpaid overtime wages for up to the past three years, an additional amount equal to the unpaid overtime, attorney’s fees and costs.

Unpaid Overtime Frequently Asked Questions

FLSA and Ohio Unpaid Overtime Wages Attorneys

Are you wondering whether you are not getting paid properly by your employer under the Fair Labor Standards Act (FLSA)? If so, below are a number of responses to frequently asked questions and/or myths that might help address your situation as it relates to your wages. If your situation is similar to any of the topics below, you should consider speaking with one of the Columbus, Ohio or Toledo, Ohio FLSA unpaid overtime wages attorneys at Bryant Legal, LLC to discuss your specific situation in more detail. We will determine whether you are owed unpaid wages and evaluate the best course of action. Contact us today for a free initial phone consultation.

Are employees entitled to mandatory work breaks or meal periods?

  • No. With the exception of truck drivers and minors, employees do not have a legal entitlement to any breaks during the work day, including lunch and other meal breaks. However, if you are working through lunch and still receive deductions for meal periods, then you should still be paid for that time.

Employees who perform work during their unpaid lunch do not have to be paid.

  • False. In order for a lunch/meal break to be unpaid, the break must be 20 minutes or more and the employee must be “completely relieved” of all work during the break. Any work performed by the employee during an “unpaid” lunch break transforms the break into a paid break. This is true even if the employee performs the work “voluntarily” or “without authorization.”
  • Do you suspect that you are performing other off-the-clock work? If so, please review common off-the-clock work that you should be paid for here.

My employer requires its employees to “clock out” for all breaks and all breaks are unpaid.

  • False. This myth results in off-the-clock work, which you should be paid for. According to FLSA regulations, only breaks of 20 minutes or more can be unpaid. Consequently, any breaks of less than 20 minutes must be paid. It does not matter if the employer has required the employee to “clock out” for the duration of the break. If the break was for less than 20 minutes, the employee must be paid for the time (even though his or her time card indicates no work during that time period).
  • Do you suspect that you are performing other off-the-clock work? If so, please review common off-the-clock work that you should be paid for here.

An employee who works unauthorized overtime is not entitled to overtime pay.

  • False. You should still be paid overtime even if it was not authorized!
  • To provide context, consider this scenario:  Bob asks his boss if he can work on Saturday to get caught up in his work. Bob’s boss says no because he does not want to pay him overtime wages. Bob instead disregards his boss’s decision and works 12 hours of overtime on Saturday. When Bob’s boss finds out, he is upset and accuses Bob of insubordination. Due to the insubordination, the boss refuses to pay Bob for the overtime work because it was “not authorized.”  In this scenario, should Bob still be paid?  YES. Bob’s boss has violated the FLSA. The employee must be paid for all hours worked, even unauthorized hours. Although the employer could still discipline or possibly terminate the employee, it cannot simply withhold pay.

All salaried employees are exempt.

  • False. If you work more than 40 hours in a workweek, you should be paid overtime unless you are specifically exempt under the FLSA. Paying an employee on a salaried basis is only one requirement of the FLSA’s white collar exemptions. If the employee’s job fails to satisfy all of the duties requirements of the exemption, the employee will not be exempt and will be entitled to overtime for all hours worked in excess of 40 in a work week. For example, paying a clerical employee a salary does not make the employee exempt from the FLSA’s overtime requirements because a clerical employee’s job duties do not fall under any exemption under the FLSA.
  • For a more in-depth discussion on whether or not you have been misclassified, click here.

My employer told me that my job title dictates exempt status.

  • False. If you work more than 40 hours in a workweek, you should be paid overtime unless you are specifically exempt under the FLSA. Simply inserting the word “supervisor,” “executive,” or “manager” into an employee’s job title does not make the employee “exempt” from the overtime provisions of the FLSA (e.g.  Assistant Manager, Shift Supervisor, Executive Assistant, Custodial Manager, Environmental Specialist).
  • For example, in order to qualify for the FLSA’s executive exemption, the employee must meet all of the requirement for the exemption:  (1) guaranteed salary of at least $455 per week; (2) primary duty is managing the employer or a customarily recognized department or subdivision of the employer; (3) the employee regularly supervises two or more full-time employees or their equivalent; and (4) the employee has the authority to hire/fire, or the employee’s recommendations in this regard are given particular weight by management.
  • For more information on whether you have been misclassified, click here.

Employees who prefer time off instead of overtime can be given compensatory time off in lieu of overtime pay.

  • False. There is no such thing as compensatory time off in the private sector. Thus, the FLSA requires an employee to be paid for the overtime hours. For example, an employee who works 8 hours of overtime this week cannot be given time off with pay for 8 or 12 hours next week. The employee must be paid for the overtime hours. Overtime earned in week one cannot be erased in week two by providing compensatory time off.
    • caveat:  Flexible work schedules. Work schedules can be manipulated in the same work week in order to avoid overtime pay (i.e., Monday through Thursday, the employee works 38 hours; the employer can instruct the employee to work only two hours on Friday to avoid overtime).
  • What about public employees?
    • While public sector employers are able to substitute compensatory time off for overtime pay, private sector employers cannot.

Subsequent to exhausting paid leave, the salary of an exempt employee can be docked when the employee comes in late or leaves early due to sickness or personal reasons.

  • False. An employer can never dock an alleged exempt employee’s salary for partial day absences (unless the absence is FMLA-qualifying). If you are paid on a salaried basis and your pay is docked, then your employer has likely misclassified you.
  • The only permissible deductions from an exempt employee’s salary are for:  (1) full day absences after the employee has exhausted all available paid leave; (2) infractions of safety rules of major significance; (3) disciplinary suspensions of one or more full days for violation of workplace conduct rules; (4) pro rata adjustments for the first and last week of employment; and (5) unpaid leave pursuant to the FMLA. Consequently, if an exempt employee has exhausted all available paid leave, arrives to work at 8 am, and leaves work at 8:30 am because of sickness (that is not FMLA-qualifying), the employer cannot deduct any amount from the employee’s weekly salary because this was not a full day absence.

Employees are entitled to be paid for accrued but unused vacation, sick time, or PTO upon the termination of employment.

  • False. The FLSA does not require employers to pay out accrued but unused vacation, sick time, or PTO upon termination of employment.  In Ohio, this issue is dictated by policy and/or practice. Whether or not an employee will be paid for unused vacation, sick time, or PTO will only be determined by the applicable employer policies. To that end, employers can insert various provisions that govern payment of unused vacation, sick time, or PTO. For example, “upon the termination of employment, employees will not be paid for any accrued, but unused leave (vacation, sick, PTO).  Additionally, employers can condition the payment of such accrued but unused leave upon the employee satisfying certain conditions (e.g. appropriate notice of termination, no-fault termination, etc.).

If your situation is similar to any of the myths above, contact an Ohio and FLSA attorney at Bryant Legal, LLC. We are happy to determine whether you may be entitled to unpaid wages and overtime wages at no cost to you. If you wait too long, you may be unable to recover the past wages you were wrongfully denied.

Recordkeeping for Computing Wages under the FLSA

Federal and Ohio Unpaid Wages Attorneys:  Recordkeeping

As Columbus, Ohio and Toledo, Ohio unpaid overtime and minimum fair wage attorneys, it is important to provide an overview of the importance of recordkeeping as it applies to all hours worked so that your employer can properly pay you the compensation you deserve. Oftentimes, failure to adhere to the FLSA and Ohio recordkeeping requirements results in unpaid overtime wages and minimum fair wage violations. The Fair Labor Standards Act (“FLSA”) requires employers to keep records on wages, hours, and other items, as specified in Department of Labor recordkeeping regulations. Ohio law also requires that employers maintain records of its employees (including the name, address, occupation, pay rate, hours worked, and amount paid).

In the event your employer does not provide you with records of your wages or you believe you are not being paid for all hours worked as a result of inaccurate recordkeeping by your employer, you may be entitled to unpaid overtime wages and/or other wages as a result of your employers minimum fair wage violations. For more information about your rights and potential compensation you may be entitled to as employees, you should contact one of the federal and Ohio unpaid wages attorneys at Bryant Legal, LLC.

What does the FLSA Require your Employer to Maintain in its Records with Respect to your Wages?

Most of the information required under the FLSA is of the kind generally maintained by employers in ordinary business practice and in compliance with other laws and regulations. The records do not have to be kept in any particular form and time clocks need not be used. However, with respect to an employee subject to the minimum wage provisions or both the minimum wage and overtime pay provisions, the following records must be kept:

  1. personal information, including employee’s name, home address, occupation, sex, and birth date if under 19 years of age;
  2. hour and day when workweek begins;
  3. total hours worked each workday and each workweek;
  4. total daily or weekly straight-time earnings;
  5. regular hourly pay rate for any week when overtime is worked;
  6. total overtime pay for the workweek;
  7. deductions from or additions to wages;
  8. total wages paid each pay period; and
  9. date of payment and pay period covered.

What if I am a Tipped employee? 

In addition to the recordkeeping requirements for hourly employees explained above, federal regulations require employers to accurately maintain additional information for “tipped employees” (i.e. waiters/waitresses, bartenders, strippers in strip clubs, and wait staff, among others) given the fact that they rely on tips for the majority of their wages. Specifically, federal regulations require the following for “tipped employees:”

  • (a) With respect to each tipped employee whose wages are determined pursuant to section 3(m) of the Act, the employer shall maintain and preserve payroll or other records containing all the information and data required in §516.2(a) and, in addition, the following:
    • (1) A symbol, letter or other notation placed on the pay records identifying each employee whose wage is determined in part by tips.
    • (2) Weekly or monthly amount reported by the employee, to the employer, of tips received (this may consist of reports made by the employees to the employer on IRS Form 4070).
    • (3) Amount by which the wages of each tipped employee have been deemed to be increased by tips as determined by the employer (not in excess of the difference between $2.13 and the applicable minimum wage specified in section 6(a)(1) of the Act). The amount per hour which the employer takes as a tip credit shall be reported to the employee in writing each time it is changed from the amount per hour taken in the preceding week.
    • (4) Hours worked each workday in any occupation in which the employee does not receive tips, and total daily or weekly straight-time payment made by the employer for such hours.
    • (5) Hours worked each workday in occupations in which the employee receives tips, and total daily or weekly straight-time earnings for such hours

See 29 C.F.R. § 516.28

If you are a “tipped employee” and suspect that your records are inaccurate, they do not accurately reflect the hours you worked, and/or you believe you have unpaid wages as a result, do not hesitate to contact a Toledo, Ohio or Columbus, Ohio unpaid overtime and minimum fair wage attorney so that your rights can be protected properly.

What if I my boss tells me I am a Salaried, Exempt Employee?

Records required for salaried “exempt” employees differ from those for nonexempt workers. Special information is required for homeworkers, for employees working under uncommon pay arrangements, for employees to whom lodging or other facilities are furnished, and for employees receiving remedial education. However, salaried employees are often misclassified and may still be entitled to overtime wages in the event they primarily perform nonexempt duties and work in excess of 40 hours in a workweek. If you are a salaried “exempt” employee and have questions about whether you have been misclassified due to your job duties, we are happy to discuss your situation in more detail.

We cannot stress the important of accurate reporting and recordkeeping of your wages. Should you have any questions or concerns, contact a Toledo, Ohio or Columbus, Ohio unpaid overtime and minimum fair wage attorney at Bryant Legal, LLC.

Home Health Care Workers Entitled to Overtime Wages

SCOTUS Decision – Over 2 Million Home Health Care Workers Entitled to Overtime Wages. Contact an FLSA Overtime Wages Attorney.

As of today, June 27, 2016, the Supreme Court of the United States (“SCOTUS”), denied hearing the Home Health Care Association of America’s request to determine the validity of the Department of Labor’s Home Care Final Rule.

If you are a home health care employee working as a home health aide, caregiver, or in any other position to provide companionship or other services, then you should contact an Ohio overtime attorney at Bryant Legal, LLC immediately to be advised of your rights to unpaid overtime. We are currently involved with representing individuals in the home health care industry who are entitled to overtime wages and can advocate on your behalf.

What Does this Ruling Mean for me?

Described as a “Win for Home Care Workers,” your once “exempt” position (which means not entitled to overtime pay) is now a “non-exempt” position such that you are entitled to overtime wages for all hours worked over 40 in any given workweek. In other words, you must be paid time and a half (overtime) for every hour you work in excess of 40 for each workweek. If you are not paid overtime wages, then your employer is violating the law and you are entitled to your unpaid overtime pay with an equal amount of liquidated damages and attorney’s fees.

Background of the Home Care Litigation

For years, home health care companies took advantage of millions of workers who provide compassionate and competent care to our loved ones who wish to remain in their homes and communities. For years, they regularly worked between 60 and 120 hours per week without a dime of overtime wages.

To provide some context to this ruling, on October 1, 2013 the Department of Labor (“DOL”) issued the Home Care Final Rule, which overturned an outdated “companionship services” exemption under the Fair Labor Standards Act (“FLSA”). Workers unfairly subject to the “companionship services” exemption meant those services which provide fellowship, care, and protection (e.g. household work, meal preparation, bed making, washing of clothes, etc.) for a person who, because of advanced age or physical or mental infirmity, cannot care for his or her own needs. See 29 C.F.R. § 552.109(a) and 29 C.F.R. § 552.6(b). The Home Care Final Rule extended minimum wage and overtime protections to almost 2 million home care workers.

Because home health care companies had to finally pay its workers time and a half (overtime wages) for all hours over 40 per week, the Home Health Care Association of America continued to fight against the DOL’s Rule. The rule was challenged in federal court, but on August 21, 2015, a federal Court of Appeals issued a unanimous opinion affirming the validity of the Final Rule. This opinion upholding the Home Care Final Rule became effective on October 13, 2015, when the Court of Appeals issued its mandate. On November 18, 2015, the Home Health Care Association of America continued to fight against allowing millions of deserving home health care workers overtime wages. It filed a petition for certiorari to seek the validity of the Home Care Final Rule.

On June 27, 2016, the U.S. Supreme Court issued an order denying a request to review the Court of Appeals decision, meaning the opinion stands. As a result, millions of home health care workers were entitled to overtime wages on October 13, 2015 – the date the appellate court issued its mandate.

Contact an FLSA Overtime Attorney at Bryant Legal, LLC today to discuss seeking overtime wages at no cost to you. You may do so using the contact form or call either office to discuss your rights.

Are You an Employee or Independent Contractor? You May Be Entitled to Unpaid Overtime Wages

In this post, it is a brief overview limited solely to understanding whether you are being misclassified as an independent contractor rather than an actual employee of the company paying you. The example described below is focused on unpaid overtime wages due to the misclassification of an employment relationship (independent contractor vs. employee) under the Fair Labor Standards Act (“FLSA”).  Should you have questions about your employment status (whether you are an independent contractor or employee), feel free to contact either office of Bryant Legal, LLC to discuss your unique wage and hour scenario with an employment attorney.

When Employers Deliberately Misclassify Employees in an attempt to Cut Costs, Everyone loses.

The misclassification of employees as independent contractors presents a very serious problem facing affected workers, employers and the entire economy. Misclassified employees often are denied access to critical benefits and protections to which they are entitled, such as the minimum wages, overtime wages, family and medical leave, unemployment insurance, and safe workplaces. Employee misclassification generates substantial losses to the federal government and state governments in the form of lower tax revenues, as well as to state unemployment insurance and workers’ compensation funds. It hurts taxpayers and undermines the economy.

The blurred lines from the fissured workplace make achieving compliance with the wage and hour laws a difficult task. Intense competition between business models like subcontracting, temporary agencies, labor brokers, franchising, licensing and third-party management leads to low pay, and noncompliance pulls down standards for all – making it difficult for responsible employers to survive in low margin, fiercely competitive conditions.  The costs in this race to be the lowest bidder are borne by workers deprived of their wages and their rights.

Issue:  Misclassification of Independent Contractors instead of Employees

According to the Department of Labor, between 10% and as high as 30% of employers may misclassify their employees as “independent contractors.” That means that workers misclassified as independent contractors are wrongfully denied access to important benefits and protections (such as minimum wages and overtime wages). For example, when a worker is determined to be an “employee” and works in excess of 40 hours per week, he or she is entitled to overtime wages. The misclassification is important because he or she would not have previously been entitled to overtime wages as an independent contractor. However, when the economic reality is that of an employee, the worker is entitled to the benefits he or she previously missed out on due to the misclassification.

Fair Labor Standards Act (“FLSA”) Definitions Overview:

In order for the Fair Labor Standards Act’s (“FLSA”) minimum wage and overtime pay provisions to apply, an employment relationship must exist between the “employer” and an “employee” (e.g. the worker).The FLSA’s definition of “employ” includes “to suffer or permit to work.” As such, The FLSA definition of employ was specifically designed to broadly cover as many workers as possible. That means that most workers are employees under the FLSA.

Importantly, you are only entitled to overtime wages and minimum-wage compensation if you are an “employee.” An independent contractor cannot enjoy the FLSA’s protections.

Solution: Determine Your Employment Status. Are You an Employee or Independent Contractor?

A worker is an “employee” if he or she is economically dependent on the employer, whereas a worker is an “independent contractor” if he or she is in business for himself or herself. Thus, it is the economic reality (the “economic realities test” explained below) of the worker’s relationship with the employer that determines whether the worker is economically dependent on the employer (and therefore, an employee) or is in the business for himself or herself (and therefore, an independent contractor).

The Sixth Circuit Court of Appeals (which covers Michigan, Ohio, Kentucky, and Tennessee), broadened the scope of the employee/employer relationship and narrowed the independent-contractor definition. Specifically, the Sixth Circuit follows the “economic realities” test for determining whether an individual is an employee or an independent contractor. Under this test, courts consider six factors when determining if you are an employee or misclassified as an independent contractor:

  1. the permanency of the relationship;
  2. the degree of skill required;
  3. the worker’s investment in equipment or materials;
  4. the worker’s opportunity for profit or loss;
  5. the degree of the alleged employer’s right to control the manner in which the work is performed; and
  6. whether the service rendered is an integral part of the alleged employer’s business.

Each factor has its own analysis and will be considered under the totality of the circumstances.

Example of Misclassification of Independent Contractors – You may be Missing Out on Important Benefits (such as Unpaid Overtime Wages).

In the context of unpaid overtime wages, in Keller v. Miri Microsystems LLC a satellite dish installer agreed to provide his services as an independent contractor, but later filed a lawsuit against the installation company claiming he was actually an employee entitled to substantial overtime pay under the Fair Labor Standards Act (FLSA). Even though the installer provided his own vehicle, tools, and equipment; could set his own schedule; was not required to wear a uniform; could work for other companies; and was able to hire his own staff, the Sixth Circuit found that it was possible he was misclassified as an independent contractor. In reaching that conclusion, the court found it significant that the installer never turned down an assignment and worked full-time for the company for twenty months. The court also noted that, even though the installer was free to work for others, his geographic location made accepting other work difficult. The court further reasoned that providing the installer with training to obtain a necessary certification was more consistent with employee status. Similarly, the court held that because the installer typically followed the work schedule he received from the company, and the company guaranteed his work, a jury could conclude that the company’s control over the installer was consistent with an employee classification.

At Bryant Legal, LLC, we ensure you are informed of your rights with respect to minimum wages, overtime wages, and other workplace benefits so that we can both protect and assert your rights. If you would like to speak with an employment attorney regarding you wage and hour issue, utilize the contact form and submit a confidential inquiry.

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