Misclassification as Independent Contractors

When hiring new employees, there are various misclassification strategies employers use.

For example:

• Misclassifying you as exempt for the purposes of overtime, i.e. classification as an exempt manager, when you are not performing a managerial job.
• Classifying you as an “Outside Salesman.” Even if you often sell away from the employer’s location, there are various strict conditions your boss has to meet to avoid paying you overtime, so check with us to make sure you are not being cheated out of overtime.
• Classifying you as an independent contractor, when your job is that of an employee. If you are an independent contractor, your employer cannot set the hours you work nor specify how you carry out your job responsibilities. Employers do not have to provide independent contractors with many benefits, including, overtime pay. Employers also obtain certain tax benefits by classifying workers as independent contractors and do not have to provide workers’ compensation coverage, withhold taxes or pay social security.

Exempt vs. Non-exempt Employees

Employees are either exempt or non-exempt from overtime law. Salaried employees such as executives and professionals, like doctors and lawyers, are usually not entitled to overtime pay. Executives, professionals and people who are really supervisors or managers are classified as exempt employees, but there are exceptions, and it never hurts to check with us. Most other employees are non-exempt, meaning they are not exempt from overtime laws and must be paid overtime wages for any time worked in excess of 40 hours in one week.

The practice of misclassifying non-exempt employees as exempt managers is illegal. If you are performing the work of a non-exempt employee and work more than 40 hours a week, you are entitled to overtime for all the time you have worked in that position.

It is important to note that your classification is not determined by your employer or by the title your employer gives you. For example, you are not a “manager” just because your boss says you are, or just because you are given a business card or sign on your door with that title. Your classification is determined by what your job duties are in practice, and by legal rules and guidelines. When these rules are ignored, your employer may be violating your rights, and not giving you all the pay you are entitled to. This may also cost you other benefits you might be entitled to.

Contact a NYC Employment Law Attorney

If you believe you were misclassified, contact the Law Offices of William Cafaro to discuss your situation and find out if you have grounds for a wage and hour claim. Your initial consultation is free, and you don’t pay any attorney fees unless our law firm is successful in obtaining compensation for you. Call our New York law firm at (212) 583-7400 to arrange an appointment to speak with an employment law attorney