Overtime aquired but not paid after 40 hours or 80 hours bi weekly

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Overtime aquired but not paid after 40 hours or 80 hours bi weekly

My employer is trying to classify me as a
private contractor. If I am an employee under
his company would I receive overtime if my
average hours worked in a week exceed 50
hours a week for the past 6 months?

Asked on October 4, 2016 under Employment Labor Law, Texas

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 4 years ago | Contributor

It doesn't matter what the employer calls you; what natters is what you are, based on the legal criteria for contractor vs. employee. You can find those criteria on the U.S. Department of Labor website, and should look them up and compare them to your job. In brief, an independent contractor is independent: the employer does not tell him how to do the job but just hires him to do it; the employer cannot require the contractor to work specific hours or tell him always where he must be, when--the contractor's responsibility is to get the job done, not to work certain hours at a certain location; etc. To it another way, if you are treated like an employee, you most likely are one, and must be paid overtime, have the employer pay the employer's portion of medicare, social security, etc. withholding, may be due benefits, etc. If you feel that you have been "mischaracterized" as a contractor when you are an employee, contact the department of labor (state or federal) to file a complaint.


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