How to determine if an employee ii eligable for overtime?

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How to determine if an employee ii eligable for overtime?

I worked at a company for 6 months as a self-contractor art director for a marketing co. First 3 months I worked at home mostly; for the last 3 months they treated me like an employee even though I was still self-contractor. I was required to work in their office managing other employees. I was completely controlled, had a set time to come in, required to work 50-65 hours week. I was paid $25 hour, no overtime. They asked me to start coming in earlier and take lunch at a set time every day. When I refused, they fired me. Do you think I have a case?

Asked on May 4, 2012 under Employment Labor Law, Florida

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

From what you write, you may have a claim for unpaid overtime for the 3 months you were "treated like an employee." If someone is an employee, and further is not exempt from overtime, he or she must be paid overtime if he or she works more than 40 hours in a week--regardless of whether or not he/she is called an employee, or a contractor, or something else.

You can find the test for when someone is legitimately an independent contractor (or not) on the U.S. Department of Justice website. In brief, an "independent contractor" is, to at least some reasonable degree, "independent": he or she can determine the hours he or she works, how to do the job, what tools to use, etc. On the other hand, someone has be at the office, for set hours, and is told how to do the job, he or she is probably an employee.

If you were an employee, then if you were paid an hourly wage (as opposed to an annual salary), you were almost certainly eligible for overtime--to be exempt from overtime, one must be paid on a salary basis as well as meet certain other criteria.

So if the last 3 months and going forward, you were actually an employee, not a contractor, you may have a claim for unpaid overtime; you may also be entitled to have the employer pay the employer share of FICA for you and to get whatever benefits (e.g. health insurance; vacation days) the employer provides its other employees. You should speak with an employment law attorney to explore your status and rights in greater detail; you may have a substantial claim.


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