How to tell if you are an employee, and thus may earn overtime

How to tell if you are an employee, and thus may earn overtime

| Jan 6, 2021 | Employment Law |

You may have worked overtime often over the time leading up to the 2020 holiday season, especially if you work in construction, at a factory or at a restaurant. However, were you properly paid for this extra work? Whether you can get to overtime pay may depend on whether you are an employee or an independent contractor.

What is the difference between an employee and an independent contractor?

It is important to know whether you are an employee or an independent contractor as employees may receive overtime pay in certain situations while independent contractors will do not have rights to overtime pay under federal law. Whether you are an employee or an independent contractor depends on how much control your employer has over your work. Generally speaking, employers have a significant amount of control over an employee’s work while they do not have significant control over an independent contractor’s work

What factors are used to decide if your employer has significant control over your work?

The U.S. Supreme Court has identified several factors that can be used to determine whether the control the employer has is significant. They include:

  • How much the work performed is an integral part of the employer’s business
  • Whether the worker’s relationship with the employer is permanent
  • How much equipment the worker contributes to the job and where the job is performed
  • The nature and amount of control the employer has over the work
  • Whether the worker has an opportunity to earn profits from the work or whether they could suffer losses from the work
  • How much the worker can exercise initiatives regarding competitors in regards to their job success
  • How much independence the worker has in how their job is organized and performed

These are only some factors that may be considered when determining whether an employer has significant control over your work, making you an employee versus an independent contractor.

Employees may have rights to overtime pay

If you are an employee in New York or New Jersey, you may have a right to overtime pay in certain situations. Independent contractors do not have these rights. This post does not contain legal advice. If you believe you are an employee who was denied overtime pay you were owed, you may want to discuss your situation with an employment law attorney for further information on this topic.