Independent Contractor Pay: Overtime Violations

Are you an exempt independent contractor or an employee due overtime? You may be surprised to learn your employer owes you thousands of dollars in overtime.

The Fair Labor Standards Act’s overtime provisions apply to all employees. Under the law, the fact that your employer are labels you an independent contractor or has you sign a 1099 does not matter. Rather, you are an employee owed overtime if your employer directs, allows or controls the manner in which you work.

All workers who are economically dependent on their employer’s business —regardless of their individual skill level—are considered employees and should receive overtime wages when they work 40 hours in a week. overtime purposes. Independent contractorsare only not entitled to overtime when they are actually in business for themselves.

Determining whether you are an independent contractor can present a difficult challenge to workers and even inexperienced attorneys. If you believe that your employer may have misclassified as an independent contractor and owes you unpaid overtime, give Dallas overtime lawyer Jack Siegel a call today at (214) 790-4454 or use the contact form at the bottom of the page for a free consultation.

Independent Contractor Overtime: How Employers Commit Wage Theft Through Misclassification

The following factors have absolutely no bearing in determining whether you are an independent contractor or an employee due overtime:

  • employee signs an agreement labeling him an independent contractor
  • employee incorporates his own business
  • employer’s method and manner of payment to employee
  • employer labels the worker an independent contractor

WARNING TO EMPLOYEES: If an employer has recently reclassified you as an employee from your previous status as anindependent contractor, your employer likely owes you unpaid overtime wages. This is especially true if your job duties have not changed since the time of the reclassification.

Independent Contractor Overtime: Is the Worker an Independent Contractor or Employee due Overtime?

Federal courts applying the FLSA use the “economic reality test” to determine if a worker is an independent contractor or an employee due overtime. The economic reality test uses the following factors to make this determination:

  • Nature and degree of employer’s control: An independent generally controls when, where and how work is completed; An employee has very little control over these aspects of work.
  • Amount of time the worker has worker for employer: The greater amount of time a worker works for an employer, the more likely he is an employee owed overtime. 
  • Extent work performed is an integral part of employer’s business: The more integral the worker’s work is to the employer’s business, the more likely he is an employee owed overtime.
  • Required training: If an employer requires a worker to undergo training, the worker is likely an employee owed overtime.
  • Full time work: If an employee works full time for an employer, he is likely an employee owed overtime.
  • Investment in equipment: If a worker invests significantly in equipment to complete work, he is more than likely an independent contractor not owed overtime.
  • Personal performance: If the employer requires the employee to personally perform work, it suggests the worker is an employee overtime; If an employer allows an employee to delegate tasks, it suggests independent contractor status.

Our Dallas overtime attorneys suggest that you speak with a knowledgeable lawyer to discover whether you are an overtime exempt independent contractor or employee due overtime. The determination is highly fact sensitive and requires a careful application of facts to relevant law. Failing to make this determination appropriately could cost you thousands of dollars in unpaid wages and overtime.

Independent Contractor Overtime: Industries Where Misclassification Occurs Frequently

One of the most common recurrent problems with misclassification occurs in the construction industry. General contractors often hire “independent contractors,” but merely provide those workers with the title to avoid overtime obligations.

Misclassification also frequently occurs in the franchise industry. If the franchisor or franchisee exerts significant control over its workers, those workers are employees due overtime when they work over 40 hours in a week.

Finally, people who perform work at their own home are often improperly labeled independent contractors. The FLSA mandates that homeworkers receive overtime wages if they meet the economic realities test.

Independent Contractor Overtime: Questions? Contact Our Texas Overtime Attorneys

Our Texas overtime attorneys encourage workers to give us a call with questions regarding whether their employers have engaged in independent contractor misclassification. We will provide you with a free consultation. If we determine your employer has engaged in improper misclassification, we’ll take your overtime lawsuit on contingency, meaning you won’t pay us a dime unless we recover unpaid wages or overtime for you.

Give our Dallas overtime lawyers a call or email today for a free consultation. You can reach our lawyers by phone at (214) 790-4454 or by email at Get the unpaid overtime you deserve today!

Jack Siegel is the Dallas employment attorney responsible for this website.
The Siegel Law Group’s principal place of business in Dallas. We gladly serve oilfield workers in West Texas, Midland, the Permian Basin, Odessa and the Eagle Ford shale.