When he or she is actually an “employee”.
I have a lot of people who come to my office and say that they were paid as independent contractors (or 1099 workers). Often, they were paid the same amount every hour, every day, every delivery, every job, or every week. They were told:
- when to show up for work,
- where to show up for work,
- where to work,
- when to work until,
- the type of work to perform,
- to wear a name tag and/or uniform;
- to use the tools and materials provided by the company,
- to follow the rules, policies, and/or procedures of the company, and
- to work for the clients of the employer (with no say about who to work for).
These workers also had no opportunity make more or less money, and had no way to share in the successes of their employers. They also could not work for anyone else because they worked so much for one company/employer.
According to the Fair Labor Standards Act, these workers could actually be considered as “employees” and not independent contractors. These workers misclassified as independent contractors instead of employees and as a result, were cheated out of the wages (and overtime wages) they earned. I have seen misclassified independent contractors who were even paid less than minimum wage (when their costs such as automobile costs were factored in) and/or who did not receive overtime wages. Overtime wages should be paid at the rate of one and one-half times the regular pay rate. Either way, they were cheated out of the money they worked hard to earn.
Calling and paying an employee as an independent contractor results in wage theft – but it is not always motivated by wage theft. Sometimes, this misclassification of employees is due to a company wanting to save on its workers’ compensation insurance. So, to defraud the workers’ compensation insurance company (by paying less premiums because it has less “employees”), the company calls and pays people as independent contractors instead of as “employees”. Most of the time, companies call and pay people as independent contractors so they don’t have to pay the minimum wages or overtime wages earned by their workers. This also results in the workers not getting the benefits (such as health insurance) received by the other workers who were properly classified as employees.
In my practice, I have learned to look past the label given to workers. I also have become used to ignoring any documents that a client sings in which he or she “agrees” to be called and paid as an independent contractor or 1099 worker. I have learned these things based upon my understanding of the law – which is meant to protect employees from being taken advantage of by their employers.
By still reading, you probably think that you were or someone you know was cheated out of minimum wages or overtime wages. By bringing a claim, the misclassified employee could not only stand to recover the minimum wages or overtime pay owed, but also recover an equal amount as a penalty, plus attorneys’ fees and costs. So, it is definitely worth it to stand up for your right to be paid fairly by hiring an attorney.
Do not worry about not having time records to prove exactly when you started or stopped working each day, or about how long you took for lunch. By not keeping accurate records of when you worked, your employer will have to rely on your best estimates and try to figure out some way to show that your estimates are wrong – other than by simply claiming that you are wrong about how much you worked. In these cases, the “tie” goes to the employee.
If you think that you were cheated out of money because you were not paid minimum wages or overtime wages, then you can either contact my office at the FairLaw Firm to obtain a free consultation or fill out a free online case evaluation.