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In the workplace, the distinction between an employee and an independent contractor is an important one. It is also a frequent cause of litigation in the area of employment law. The reason for this is that an employer has a number of important duties and responsibilities to an employee that do not apply to an independent contractor. For example, your employer may classify you as an independent contractor, leading to the question “ Am I entitled to overtime pay as an independent contractor?

The straightforward answer to that question is that “no”, a true independent contractor is not entitled to overtime pay under state or federal law; however, many employees are misclassified as independent contractors precisely so that an employer can avoid paying overtime pay as well as avoiding other obligations such as covering the worker under workers’ compensation and/or unemployment insurance. Most employees are entitled to overtime pursuant to the federal Fair Labor Standards Act, or FLSA whereas independent contractors are not. Just because your employer classifies you as an independent contractor, however, does not necessarily mean you are an independent contractor in the State of Florida.

Like most states, the State of Florida has had to come up with a “test” to determine if a worker is truly an independent contractor or is really an employee. The independent contractor “test” takes 10 factors into consideration, including:

  • The extent of control which, by the agreement, the business may exercise over the details of the work.
  • Whether the one employed is engaged in a distinct occupation or business.
  • Whether the work done in a certain locality is usually done under the direction of the employer or by a specialist without supervision.
  • The skill required in the particular occupation.
  • Whether the employer or the worker supplies the instrumentalities (for example: equipment, vehicle, materials), tools, and the place of work for the person doing the work.
  • The length of time the person is employed.
  • The method of payment, whether by the time or by the job.
  • Whether the work is a part of the regular business of the employer.
  • Whether the parties believe they are creating the relationship of employer and employee.
  • Whether the hiring party is or is not in business.

If, after taking all of the relevant factors into consideration it turns out that you are actually an employee, not an independent contractor, you will be entitled to overtime pay unless you fall into another exception to the overtime pay requirements under the FLSA.

Determining whether or not you are an employee is a very fact specific process. If you have additional questions or you believe your employer has misclassified you, contact the experienced Florida employment law attorneys at Celler Legal, P.A. by calling 954-716-8601 to schedule your appointment.