Is an independent contractor entitled to overtime pay?

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Is an independent contractor entitled to overtime pay?

I am a caregiver and my employor has me as an independent contractor. She calls all the shots regarding my hours and my pay. I was working 84 hours a week with no overtime. Now I’m working 60 hours a week and still no OT. This is been going on for 2 1/2 years. I found some papers she had given me when I started the job and it says she cannot have me work over 40 hours a week. Am I entitled to OT pay for the 2 1/2 years that I have been working for her?

Asked on August 23, 2011 Texas

Answers:

Richard Weaver / The Weaver Law Firm

Answered 10 years ago | Contributor

There is much more to learn about whther you are truly an independent contractor or an employee. If you are an employee, you should be paid for your overtime. Attorneys can help on a contigency basis where you do not have to pay unless they recover a judgment or settlement for you. Feel free to visit us at www.WeaverLawyers.com

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

If you are *really* and independent contractor, then you are not entitled to overtime pay--you get only what you contractually agreed to. The labor laws, including the obligation to pay overtime under the Fair Labor Standards Act (FLSA) only applies to actual employees.

The question is, are you actually an independent contractor? From what you write, you may not be. What you are called, or how the other party wants to pay you, has no bearing; the Department of Labor and the courts look to the reality of the situation. For more information, to the U.S. Dept. of Labor website--they have some pages there on the difference between an independent contractor and an employee. In brief, the issue is control and independence. An independent contractor controls her own hours and how she does her work; she typically has more than one client (though that's not an absolute requirement); she usually works offsite; and is not subject to the close direction of her client. If you don't control you job and you do not have economic independence, you very well may *not* be an independent contractor, but rather might be an employee. Working 60 hours a week, in someone's home, while she "calls the shots," seems much more like an employee than an independent contractor.

If you have been misclassified and you should have been an employee, you may be able to collect back wages for unpaid hours; back unpaid overtime; the contributions that the employer should have made to FICA (i.e. withholding) on your behalf; and possibly additional damages, too. From what you write, you should consult with an employment attorney. Good luck.


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