How does an employer not pay overtime?

I am working for an lawn care employer who the the last 5 years has refused to

pay any overtime, insurance or unemployment. I am not a salary worker, I’m paid hourly, however I receive a 1099 every year. I’m also not contracted in any way since I personally do not own any lawn care equipment of my own and have never signed any contract. Is this legal or has my employer been illegally not paying me what I’m due.

Asked on August 31, 2016 under Employment Labor Law, Iowa

Answers:

M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 4 years ago | Contributor

If you are truly an independent contractor and not an employee, then FLSA (Federal Labor Standards Act) does not apply and there is no overtime requirement applicable to your situation. However, their has been a crack down on the use of categorizing workers as "contractors" who are really are "employees". Therefore, if you are truly an employee than your employer is legally mandated to pay you for your overtime hours. In order to determine your status as contractor or employee, you can go to this site and check:
https://www.irs.gov/businesses/small-businesses-self-employed/independent-contractor-self-employed-or-employee

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 4 years ago | Contributor

It is illegal: an hourly employee MUST be paid for all hours worked, and overtime (time-and-a-half) when they work more than 40 hours in a week. If they don't, you could bring a wage and hour complaint to your state department of labor to force them to pay overtime; you can potentially recover back overtime for the last two years (wage and overtime claims can only go back 2 years). You should contact your state depatment of labor immediately.


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