How you are classified as an employee can have an enormous impact on your rights and what you are paid. If you believe you have been misclassified, an experienced employment lawyer can help you bring a claim against your employer to recover the wages and benefits you were entitled to receive. At Swartz Law, we represent clients with misclassification claims in the Kansas City area in Missouri and Kansas.
Employee v. Independent Contractor
Independent contractors have far fewer rights than employees in the workplace. For example, independent contractors are not entitled to job-related benefits. Also, employers are not required to pay taxes for independent contractors. Instead, independent contractors have to pay their own self-employment tax. Whether intentionally or by accident, employers do misclassify employees as independent contractors.
To determine whether you are an employee or an independent contractor, the degree of control your company has over your work and your independence is considered. Numerous factors are evaluated to make this determination, such as: does the company control what you do and how you work, are expenses reimbursed, who provides the necessary tools and supplies to perform your work, do you have a required work location, do you work for multiple companies, what is the length of the relationship, and are the services you are providing integral to the business? Under federal law, all factors must be weighed and no one factor alone is determinative.
Exempt v. Nonexempt
The Fair Labor Standards Act (FLSA) covers most jobs and requires that employers pay their employees minimum wage and overtime (at one and one-half the regular rate of pay for hours worked in excess of 40 hours each week). However, the FLSA provides an exemption for employees working in certain jobs. Many of the rights and protections given to nonexempt workers under the FLSA do not apply to exempt workers. For example, an exempt worker does not have a right to overtime pay or other legal rights such as meal and rest breaks. Some jobs are exempt by definition under the law. However, most jobs must meet certain tests to qualify as exempt. With a few exceptions, the worker must be paid a minimum weekly amount, be paid on a salary basis, and perform exempt job duties. The job duties test falls under 5 main categories: outside sales, executive, administrative, professional and computer employees.
Determining whether you are properly classified can be complicated. If you are concerned your rights are being violated, you need an experienced employment lawyer to help evaluate your situation and determine whether you have a claim.