When a plumber or other service provider does work for another person, he or she is not always an employee of the home or business where the work is done. There is another type of worker called an “independent contractor,” who may be transient, in business for himself or herself, or able to direct the way that the work is done.
However, when a service provider works for the benefit of a business or partnership, and is subject to its control and supervision, courts often find that the work is employment, and that the business or partnership is the employer. Whether someone is an employer is decided case by case, based on all the relevant facts. Many times, these facts involve the sorts of training, requirements, assignments, and other arrangements announced by a worker’s boss or bosses.
If the working relationship lasts for weeks and months, rather than only a day or two here and there, the worker may be the employee of the company or partnership where the work is done. This is especially true if the boss or bosses at the workplace control the work that is done, leave the worker with no chance for an independent profit, or invest in the training of the worker or arrangement of the work. As one decision put it, even though a manual stated that FedEx would not control its delivery drivers in any way, the drivers were employees of FedEx because the company set delivery rates, collected the money, assigned drivers to regions, and established pickup schedules.
In April 2015, the Department of Labor reported that it had completed an investigation of unpaid wages to construction workers who were wrongly labeled as nonemployees. More than a dozen defendants agreed to pay more than $700,000 in back wages, penalties and other relief to the workers.
Sometimes, a company will try to claim that some workers don’t get overtime pay because they are managers on a salary. The Department of Labor has been looking into those cases as well. Earlier this year, the Department of Labor settled an investigation of a bar and grill which allegedly improperly classified assistant kitchen managers as exempt from overtime pay. In 2014, a judge approved a settlement of a case alleging that Family Dollar improperly classified its store managers as being exempt from overtime. Rite Aid and Aldi have also settled overtime claims involving store managers.
Although the question of whether a worker is an employee can be complex, consulting an attorney with experience handling minimum wage and overtime cases can offer clarity. Often, an attorney may be able to uncover evidence that the bosses exercise so much control and rake in so many of the benefits of the relationship that the worker has overtime or minimum-wage rights.