OVERTIME: INDEPENDENT CONTRACTOR V. EMPLOYEE
One of the largest issues for employers is whether to classify individuals as employees or independent contractors. Classification as an employee or independent contractor effects the way an individual is paid and dictates whether an individual is protected by the Fair Labor Standards Act (FLSA). Employees are protected by the FLSA, therby mandating employers to comply with its provisions regarding minimum wage and overtime pay. Employers decide whether a person is an employee or independent contractor by analyzing his or her job duties.
The FLSA requires that most employees be paid at least the federal minimum wage for all hours worked and be paid overtime at time and one-half of the “regular” rate of pay for all hours worked over 40 hours in a work week for overtime. For more information on how to calculate the “regular” rate of pay, see our recent blog post https://www.thefriedmannfirm.com/blog/ and the Department of Labor’s website http://www.dol.gov/whd/regs/compliance/whdfs23.pdf.
Therefore, if you are an employee, you are protected by the FLSA and must be paid minimum wage and not less than time and one-half of your regular rate of pay for all hours worked over 40 hours in a workweek. The “regular” rate of pay will vary, depending on whether any non-discretionary bonuses or other types of compensation are included in your regular rate of pay. If you are strictly an hourly employee, overtime calculations are fairly straightforward.
The FLSA provides an exemption from the FLSA for certain types of employees. This means an employer is exempt from paying minimum wage and overtime pay, as mandated by the FLSA, if an employee falls into a certain classification of jobs. Those exempt from the FLSA include executive employees, administrative employees, professionals, outside sales employees and certain computer employees. For information on the professional exemption, click here https://www.thefriedmannfirm.com/the-flsa-professional-exemption-in-ohio/. Other posts on the executive, administrative and outside sales employees will follow.
To qualify for an exemption, employees must generally be meet certain tests regarding their job duties and be paid on a salary basis of not less than $455 per week. Information on the salary basis requirement can be found here: http://www.dol.gov/whd/overtime/fs17g_salary.pdf. Information on job duties of each specific exemption can be found here: http://www.dol.gov/whd/overtime/fs17a_overview.htm.
It is always best to consult with an attorney to determine whether or not you are truly exempt. Misclassification lawsuits (those where the employer incorrectly classifies employees as independent contractors) are extremely common. Our Columbus Employment Lawyers can answer all of your questions and help you determine whether you have been correctly classified.
If you are an independent contractor, you are exempt from the protections of the FLSA and the employer does not have to comply with the FLSA minimum wage and overtime regulations. Independent contractors are often paid on a “per job” basis. For factors that are considered in deciding whether an individual is an employee or independent contractor, visit the Department of Labor’s website: http://www.dol.gov/whd/regs/compliance/whdfs13.htm.
If you believe you could be misclassified, contact a Dayton employment lawyer at The Friedmann Firm Today.
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Rachel was absolutely amazing. As an attorney she really took the time to really listen to my concerns. She was honest and kept me informed every step of the way. The outcome was favorable on my behalf and I appreciate her efforts to achieve a good outcome. I would highly recommend her and the Friedmann firm to represent me if ever needed in future.
Working with Rachel Sabo from Friedmann Firm was absolutely amazing! She upholds integrity, honesty and without a doubt fights for what is right! Rachel was extremely transparent and real! Please don’t let wrong be right, Rachel will strive to advocate and put her whole heart in obtaining resolve in your situation! What an absolute blessing, she won my case in less than 1 week💪
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Rachel and the Friedmann Firm were fantastic to work with. The thought of needing an employment lawyer was scary for me, it was confusing and complex. But Rachel listened, asked questions and took time to really understand me and my priorities. I felt calm, supported and excited for the first time in weeks after talking to her!! We worked together to review everything, set expectations and meet my priorities! Thanks Rachel and team for all your work!!!
Rachel Friedmann of the Friedman Firm was my attorney for a very recent legal matter. I would highly recommend Rachel based on her legal knowledge, her honest appraisal of the matter and expected outcomes, her open communication and timely responses to my questions and the matter itself, and her steadfastness in dealing with the opposing counsel until a final agreement was reached.
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The Friedmann Firm (specifically Pete Friedmann) represented me through what seemed like a never ending employment discrimination suit. The suit was filed just before Covid shut everything down in 2020. Add to that a former employer who refused to admit fault. In spite of all of that, Pete stood resolute in his representation of me and working for the best outcome for me. We ended up settling prior to trial and I was more than satisfied with the results. Pete was always available to answer questions and reassure me throughout this process. I highly recommend The Friedmann Firm!
Pete Friedmann and his firm are fantastic. He represented me for more than a year going through a suit with a previous employer. He walked me through every step of the process and was always quick to respond to any questions I had. My settlement came in and we parted ways with both sides being pleased with the outcome. I highly recommend the Friedmann firm and wouldn’t hesitate to use them again in the future if the need arose. Thank you, Pete!
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