New York City Employment Misclassification Lawyer
Helping Make Sure Employees Get Minimum Wage and Overtime Pay When They Are Entitled to It
Misclassification is one of the main ways employers get out of paying overtime. Whether due to a deliberate attempt by employers to evade their responsibility to their employees or an innocent mistake based on a misunderstanding of the law, employees who get misclassified as exempt from overtime miss out on two of the most fundamental worker protections in America: time-and-a-half for every hour over 40 worked in a week and a guaranteed minimum wage. Below we discuss the two main ways employees get misclassified as exempt from overtime. If you work in New York City and believe you are not receiving overtime or minimum wage as you are supposed to, call Mansell Law for a free consultation to find out if you might be improperly misclassified as exempt.
Misclassified as an Exempt White-Collar Worker
The federal Fair Labor Standards Act (FLSA) allows employers to exempt their executive, administrative and professional employees from minimum wage and overtime requirements, provided they meet certain requirements. These requirements include being paid a certain amount each week (the salary basis test) and primarily performing executive, administrative or professional duties (the duties test). New York labor law includes a different salary basis test than the FLSA does for administrative and executive employees, as well as its own duties tests that differ slightly from the federal rules. Employers misclassify workers when they apply the wrong salary basis test or duties test, or choose the right test but still misapply it.
See our page on overtime exemptions for more information about the white-collar exemptions, and call our office if you think have been misclassified on this basis.
Misclassified as an Independent Contractor
The other major way employees get misclassified as overtime-exempt is when they are misclassified as independent contractors. Independent contractors don’t get paid overtime; only employees do. While misclassification as a white-collar worker is often the result of a mistake on the employer’s part, misclassification as an independent contractor is quite frequently the result of an intentional move on the employer’s part to avoid paying overtime. If you are regularly employed by the same employer and made to work overtime yet told you are an independent contractor, you should seriously consider speaking with an experienced New York employment lawyer to analyze your actual job duties.
Neither the FLSA nor New York Labor Law provides a clear definition of employee versus independent contractor. Instead, you have to look at a long series of factors that weigh for or against independent contractor status. Answering the following questions can help you determine whether you are truly an independent contractor or an employee:
- Who decides when, where and how the work will get done?
- Who sets the work hours?
- Who sets the rate of pay?
- Who provides tools, equipment and supplies for the job?
- Does the employer directly supervise you?
- Are you free to take on other jobs while working for the employer?
- Can you hire helpers if you choose?
- Are you free to refuse an offer of work from the employer?
- Are you paid an hourly rate, on a salary, or by the job?
Just because your boss gave you a 1099 instead of a W-2, that doesn’t make you an independent contractor. Just because your employer told you that you are an independent contractor, that doesn’t necessarily make it so. If you’ve been misclassified as an independent contractor when you are really an employee, you could be missing out on wages and overtime your employer is legally obligated to pay you. If that’s the case, they owe you back pay, interest, penalties and other legal damages, but you have to move quickly to get all that is owed to you.
Call Mansell Law Attorneys to Fight Misclassification of Employment Status in New York City
If you think that you’ve been misclassified as an exempt employee or an independent contractor in New York City, call Mansell Law at 646-921-8900 for a free consultation with a team of experienced, knowledgeable and tenacious New York employment lawyers.
