Are Independent Contractors Required To Be Paid Overtime Wages Under Ohio Law?
While it is true that Ohio law does not require independent contractors to be paid overtime wages but does require employees to be paid overtime wages, the answer in practice is not always that clear.
Employers can mistakenly misclassify employees as 1099 independent contractors causing those workers to miss out on properly being paid overtime wages and suffer Ohio wage violations. In determining whether a worker is owed unpaid overtime wages as an employee, one must look to Ohio and federal law to determine that worker’s classification.
If you believe you are an employee, but your boss is not paying overtime wages because you are told you are an independent contractor, we encourage you to discuss your specific circumstances with our Ohio unpaid overtime lawyers in a free consultation to determine if you are owed unpaid overtime wages.
Am I an Independent Contractor or employee Under Ohio and federal law?
Ohio law and federal law look towards similar considerations in determining whether a worker is an employee or independent contractor, and thus required to be paid overtime wages. However, under federal law, there is not specific test. Instead, the Supreme Court has considered the following employment factors:
- The extent to which the services rendered are an integral part of the principal’s business.
- The permanency of the relationship.
- The amount of the alleged contractor’s investment in facilities and equipment.
- The nature and degree of control by the principal.
- The alleged contractor’s opportunities for profit and loss.
- The amount of initiative, judgment, or foresight in open market competition with others required for the success of the claimed independent contractor.
- The degree of independent business organization and operation.
In applying all of the considerations above, factual determinations are important. For example, do you set your own schedule and hours or does your employer? Do you wear a provided work uniform? Do you supply your own equipment, tools, and supplies, or does your employer? Are you paid per project or in weekly increments? Is the manner in which you perform your work controlled by your employer or you?
While these are just a few considerations, our unpaid overtime lawyers in Columbus, Ohio can discuss your specific circumstances to help you determine whether you are an employee or independent contractor and whether you are owed overtime wages.
If I am misclassified as an independent contractor, what other wages should I be paid as an employee?
The two biggest distinctions regarding the differences in how employees and independent contractors are paid surround overtime pay and minimum wages.
Overtime Wage – Workers must be paid one- and one-half times their regular rate of pay for any time worked over 40 hours in a work week. This not only includes their scheduled work time, but also any time spent performing pre-shift and post-shift “off the clock work” such as stocking cleaning supplies, cleaning work vehicles, stocking work vehicles, cleaning restaurants, balancing registers, or performing opening or closing duties. This also includes the time for which you should have been paid in the past. If you are an hourly employee working overtime without overtime pay, it is a wage violation.
Minimum Wage – When an independent contractor’s hours do not add up to minimum wage, for example because the work was longer than anticipated, it does not matter because they are exempt from the Fair Labor Standards Act. However, employees’ pay must add up to be at least $7.25 (for federal law) and $9.30 (for Ohio law, at the time this article was written) when considering all hours worked. This also includes pre- and post-shift work as discussed above. If their pay does not amount to at least minimum wage, it is a wage violation.
What can I do if my employer is not paying me overtime wages?
We recognize that reporting unpaid wages or a wage violation against your employer can be scary and uncomfortable. Workers should take comfort in knowing that the law prohibits employers from retaliating against workers who make wage complaints, file a wage lawsuit, testify in a lawsuit regarding wages, or otherwise cooperate in a wage and hour investigation.
We also recognize that workers often are concerned about lawsuits. In fact, most of our clients have never filed a lawsuit before and do not want to be perceived as litigious. For these reasons, we work to amicably resolve these matters with your employer. However, sometimes, lawsuits are necessary to recover your unpaid wages.
If a lawsuit is necessary, employees can seek back pay (unpaid wages that should have been paid), liquidated damages (an amount equal to back pay), and attorney fees and court costs.
Further, if it is proven that a wage violation occurred, the law oftentimes requires that the employer pay for the employees’ attorney fees.
Contact Brian G. Miller Co., L.P.A. if you believe you are owed unpaid overtime wages
If you have questions about unpaid overtime laws, unpaid overtime wages, or general questions about whether your employer has violated federal or Ohio labor laws, please call (614) 221-4035 or click here to schedule a free consultation with a trusted and respected Ohio unpaid overtime lawyer.