Unless an individual is properly classified as an independent contractor, the individual may be protected by both FLSA and New York State wage and hour laws as an "employee."
As a general rule, an individual is an independent contractor if that individual, as opposed to entity for whom the services are being performed, has the right to control or direct the means and methods of accomplishing the work result.
In determining whether an individual is an employee covered by applicable law or an independent contractor without wage and hour protections, "the ultimate concern is whether, as a matter of economic reality the workers depend upon someone else's business for the opportunity to render service or are in business for themselves."
The factors to be considered in assessing "independent contractor" status include:
- the degree of control exercised by the employer over the workers,
- the workers' opportunity for profit or loss,
- the degree of skill and independent initiative required to perform the work,
- the permanence or duration of the working relationship, and
- the extent to which the work is an integral part of the employer's business.
In cases where employees have been misclassified as independent contractors, they may have the right to seek overtime and other lost compensation incurred as a result of the misclassification.
If you have any questions or need more information concerning your specific wage and hour issues, please call us at (914) 949-2700 or use our email form to get in touch with New York Labor and Employment Attorneys.