Misclassification

Are direct care domestic workers entitled to FLSA minimum wage and overtime pay?

Dated: August 11, 2020

Find out if you might qualify for minimum wage or overtime pay with this simple  4-question checklist. You should consult an experienced employment FLSA lawyer to find out how these 4 points apply to your individual circumstances. The Law Office of Rose H. Robbins offers a free case analysis by telephone : (954) 946-8130

#1     Are you employed by anyone other than the person you assist or that person’s family or household (for instance, a home care agency or other entity)?

IF ANSWER YES:  You must receive at least the federal minimum wage and overtime pay if you are employed or jointly employed by any employer other than the person receiving your services or that person’s family or household. That other employer (rather than the person, family, or household) is responsible for ensuring that you receive the federal minimum wage and overtime pay for all hours worked. There’s no need for you to answer any further questions.

IF ANSWER NO: Then continue on.

#2     Do you provide domestic services that are primarily on behalf of other members of the household, such as doing laundry for another family member or preparing meals for someone other than the person being assisted?

IF ANSWER YES: You must be paid at least the federal minimum wage and overtime pay in any workweek when you perform domestic work that is primarily for the benefit of others besides the person being assisted. There’s no need for you to answer any further questions.

IF ANSWER NO: Then continue on.

#3     Do you provide medically related services that typically require and are performed by trained medical personnel? These are services that may be invasive, sterile, or otherwise require exercising medical judgment, such as assisting with tube feeding or catheter care.

IF ANSWER YES: You must be paid at least the federal minimum wage and overtime pay in any workweek when you perform medically related services that typically require trained medical personnel (like a licensed practical nurse, certified nurse assistant, etc.). Even if you haven’t had the required training or have a different job title, you are still covered by the minimum wage and overtime pay protections if performing these services. There’s no need for you to answer any further questions.

IF ANSWER NO: Then continue on.

#4    Do you spend more than 20% of your time in a workweek assisting with activities of daily living (ADLs) (such as dressing, grooming, feeding, bathing, toileting, and transferring) or instrumental activities of daily living (IADLs) (such as meal preparation, driving, light housework, managing finances, assisting with the physical taking of medications, and arranging medical care)?

IF ANSWER YES: You must be paid at least the when you spend more than 20% of your time assisting with activities of daily living (ADLs) or instrumental activities of daily living (IADLs).

IF ANSWER NO: Then you may not qualify for the federal minimum wage and overtime pay.

Rose H. Robbins, Esq.

 

The determination of whether you qualify for FLSA minimum wage and overtime pay is best made by an experienced attorney. Call attorney Rose H. Robbins at (954) 946-8130 for a FREE  telephone consultation about your claim for minimum wage or overtime pay violations. Or you can complete the simple contact form below for confidential submission to our office.  Please be advised that by merely submitting this form, no Attorney-Client relationship is formed with this law firm.   You must provide your name,  home or cell phone number, your email address and the zip code where you work on the form.  We serve the following South Florida counties: Broward, Highlands, Indian River, Martin, Miami-Dade, Monroe, Okeechobee, Palm Beach, and St. Lucie.

Salary Alone Does Not Determine Exemption From Overtime Pay

Neither a job title or salary alone determines exempt status from overtime pay. The Fair Labor Standards Act (“FLSA”) requires that most employees in the United States be paid at least the federal minimum wage for all hours worked and overtime pay at time and one-half the regular rate of pay for all hours worked over 40 hours in a workweek.

Call attorney Rose H. Robbins at (954) 946-8130 for a FREE  telephone consultation about your claim for minimum wage or unpaid overtime wage violations.

When does pay for compensable time become mandatory? For “white collar” employees, the FLSA does provide an exemption from both minimum wage and overtime pay for bona fide executive, administrative, professional and outside sales employee as well as certain computer employees.  To qualify for this exemption, employees generally must meet certain tests based on their job duties and be paid on a salary basis at not less than $455 per week.   The application of these tests to specific cases has been developed by the cases fought out in Courts. A Florida lawyer experienced in wage and hour litigation should analyze your particular job situation to find out if your FLSA rights have been violated and you are owed minimum or overtime wages.

However, these  “white collar” exemptions from overtime and minimum wages do not apply to manual laborers or other “blue collar” workers who perform work involving repetitive operations with their hands, physical skill and energy.  FLSA-covered, non-management employees in production, maintenance, construction and similar occupations such as carpenters, electricians, mechanics, plumbers, iron workers, craftsmen, operating engineers, longshoremen, construction workers and laborers are entitled to minimum wage and overtime premium pay under the FLSA, and generally are not exempt no matter how highly paid they might be.

Call attorney Rose H. Robbins at (954) 946-8130 for a FREE  telephone consultation about your claim for minimum wage or unpaid overtime wage violations. Or you can complete the simple form below for confidential submission to our office.  Please be advised that by merely submitting this form, no Attorney-Client relationship is formed with this law firm.   You must provide your name,  home or cell phone number, your email address and your zip code in the form.  We serve the following counties: Broward, Highlands, Indian River, Martin, Miami-Dade, Monroe, Okeechobee, Palm Beach, and St. Lucie

Under the Fair Labor Standards Act (FLSA) when is a Worker an Employee or an Independent Contractor?

In order for the FLSA’s minimum wage and overtime provisions to apply to a Florida worker, the worker must be classified as an “employee” of the employer, meaning that an employment relationship must exist between the worker and the employer.

Retaliation under FLSA

What is the meaning of the term “employment relationship” and what is the significance of that determination in applying provisions of the Fair Labor Standards Act (“FLSA”)? To determine whether an employment relationship exists you must decide if a worker an employee or independent contractor with respect to the person or company that has hired them.

The FLSA defines “employ” as including to “suffer or permit to work”, representing the broadest definition of employment under the law because it covers work that the employer directs or allows to take place. Applying the FLSA’s very broad definition, workers who are economically dependent on the business of the employer, regardless of skill level, are considered to be employees, and most workers are employees. On the other hand, independent contractors are workers with economic independence who are in business for themselves.

A number of “economic realities” factors are helpful guides in resolving whether a worker is truly in business for himself or herself, or like most, is economically dependent on an employer who can require (or allow) employees to work and who can prevent employees from working. The Supreme Court has indicated that there is no single rule or test for determining whether an individual is an employee or independent contractor for purposes of the FLSA. The Court has held that the totality of the working relationship is determinative, meaning that all facts relevant to the relationship between the worker and the employer must be considered.

While the factors considered can vary, and while no one set of factors is exclusive, the following factors are generally considered when determining whether an employment relationship exists under the FLSA (i.e., whether a worker is an employee, as opposed to an independent contractor):

1) The extent to which the work performed is an integral part of the employer’s business. If the work performed by a worker is integral to the employer’s business, it is more likely that the worker is economically dependent on the employer and less likely that the worker is in business for himself or herself. For example, work is integral to the employer’s business if it is a part of its production process or if it is a service that the employer is in business to provide.

2) Whether the worker’s managerial skills affect his or her opportunity for profit and loss. Managerial skill may be indicated by the hiring and supervision of workers or by investment in equipment. Analysis of this factor should focus on whether the worker exercises managerial skills and, if so, whether those skills affect that worker’s opportunity for both profit and loss.

3) The relative investments in facilities and equipment by the worker and the employer. The worker must make some investment compared to the employer’s investment (and bear some risk for a loss) in order for there to be an indication that he/she is an independent contractor in business for himself or herself. A worker’s investment in tools and equipment to perform the work does not necessarily indicate independent contractor status, because such tools and equipment may simply be required to perform the work for the employer. If a worker’s business investment compares favorably enough to the employer’s that they appear to be sharing risk of loss, this factor indicates that the worker may be an independent contractor.

4) The worker’s skill and initiative. Both employees and independent contractors may be skilled workers. To indicate possible independent contractor status, the worker’s skills should demonstrate that he or she exercises independent business judgment. Further, the fact that a worker is in open market competition with others would suggest independent contractor status. For example, specialized skills possessed by carpenters, construction workers, and electricians are not themselves indicative of independent contractor status; rather, it is whether these workers take initiative to operate as independent businesses, as opposed to being economically dependent, that suggests independent contractor status.

5) The permanency of the worker’s relationship with the employer. Permanency or indefiniteness in the worker’s relationship with the employer suggests that the worker is an employee, as opposed to an independent contractor. However, a worker’s lack of a permanent relationship with the employer does not necessarily suggest independent contractor status because the impermanent relationship may be due to industry-specific factors, or the fact that an employer routinely uses staffing agencies.

6) The nature and degree of control by the employer. Analysis of this factor includes who sets pay amounts and work hours and who determines how the work is performed, as well as whether the worker is free to work for others and hire helpers. An independent contractor generally works free from control by the employer (or anyone else, including the employer’s clients). This is a complex factor that warrants careful review because both employees and independent contractors can have work situations that include minimal control by the employer. However, this factor does not hold any greater weight than the other factors. For example, a worker’s control of his or her own work hours is not necessarily indicative of independent contractor status; instead, the worker must control meaningful aspects of the working relationship. Further, the mere fact that a worker works from home or offsite is not indicative of independent contractor status because the employer may exercise substantial control over the working relationship even if it exercises less day-to-day control over the employee’s work at the remote worksite.

1099 miscIn addition, there are certain factors which are immaterial in determining the existence of an employment relationship. For example, the fact that the worker has signed an agreement stating that he or she is an independent contractor is not controlling because the reality of the working relationship – and not the label given to the relationship in an agreement – is determinative. Giving a worker a Form 1099 is immaterial to a determination. Likewise, the fact that the worker has incorporated a business and/or is licensed by a State/local government agency has little bearing on determining the existence of an employment relationship. Additionally, the Supreme Court has held that employee status is not determined by the time or mode of pay.

What are the consequences of  a finding that an employer-employee relationship exists under the FLSA ?

      When an employer-employee relationship exists, and the employee is engaged in work that is subject to the FLSA, the employee must be paid at least the Federal minimum wage of $7.25 per hour, effective July 24, 2009, and in most cases overtime at time and one-half his/her regular rate of pay for all hours worked in excess of 40 per week.

Click here to read about cable installers who were determined to be employees and not independent contractors.

Click here to read about telemarketers who were determined to be employees and not independent contractors.

Click here to read about hotel and motel workers who were determined to be employees and not independent contractors.

IMG_3148Please feel free to call the law office for a FREE strictly confidential consultation about your unpaid overtime wage violations at: (954) 948-8130 or complete the simple form below for submission to us.  Also please be advised that by merely submitting this form, no Attorney-Client relationship is formed with the law firm.   You must provide your name,  home or cell phone number, your email address and your zip code in the form.  We look forward to discussing your overtime pay violations claim and we are passionate about defending and enforcing workers’ rights for unpaid wages.