{"id":1089,"date":"2017-06-30T00:00:00","date_gmt":"2017-06-30T00:00:00","guid":{"rendered":"https:\/\/www.johnsonfistel.com\/employment-law-forget-the-labels-know-your-rights\/"},"modified":"2017-06-30T00:00:00","modified_gmt":"2017-06-30T00:00:00","slug":"employment-law-forget-the-labels-know-your-rights","status":"publish","type":"post","link":"https:\/\/www.johnsonfistel.com\/employment-law-forget-the-labels-know-your-rights","title":{"rendered":"Employment Law &#8220;Forget the Labels-Know Your Rights&#8221;"},"content":{"rendered":"<div class=\"col-md-5 col-xs-12\" style=\"float: left; margin: 0 .5em 0 .5em;\">\n<blockquote class=\"twitter-tweet\" data-lang=\"en\">\n<blockquote class=\"twitter-tweet\" data-width=\"550\" data-dnt=\"true\">\n<p lang=\"en\" dir=\"ltr\">Employment Law &quot;Forget the Labels-Know Your Rights&quot; <a href=\"https:\/\/t.co\/yTgZBGnn22\" target=\"_blank\">https:\/\/t.co\/yTgZBGnn22<\/a> <a href=\"https:\/\/twitter.com\/hashtag\/Law?src=hash&amp;ref_src=twsrc%5Etfw\" target=\"_blank\" rel=\"noopener\">#Law<\/a> <a href=\"https:\/\/twitter.com\/hashtag\/Rights?src=hash&amp;ref_src=twsrc%5Etfw\" target=\"_blank\" rel=\"noopener\">#Rights<\/a> <a href=\"https:\/\/t.co\/mQ6zkUFnt2\" target=\"_blank\">pic.twitter.com\/mQ6zkUFnt2<\/a><\/p>\n<p>&mdash; Johnson Fistel, LLP (@JF_LLP) <a href=\"https:\/\/twitter.com\/JF_LLP\/status\/880864158744367104?ref_src=twsrc%5Etfw\" target=\"_blank\" rel=\"noopener\">June 30, 2017<\/a><\/p><\/blockquote>\n<p><script async src=\"https:\/\/platform.twitter.com\/widgets.js\" charset=\"utf-8\"><\/script><\/p><\/blockquote>\n<\/div>\n<p>Many of the hard working people in today\u2019s labor force have money and benefits taken from them in the workplace\u2014by their own company. Misclassification of workers as independent contractors and improper application of overtime exemptions are ways that businesses attempt to unlawfully reduce labor-related expenses. Companies save thousands (and millions) of dollars each year by engaging in these practices, which result in wrongful denial of substantial benefits, rights, and\/or pay. Most workers are simply unaware they\u2019re being improperly misclassified or exempted. Those aware are often afraid to complain, for fear of discipline or termination. When in doubt, you should always seek the advice of an attorney to determine whether your employer is engaging in one of the illegal practices described below.<\/p>\n<p><strong>A. Exemptions to Overtime Pay<\/strong><br \/>\nOne way that businesses cut costs is by minimizing overtime pay. Employers typically achieve this by applying one of the several exemptions permitted by the Fair Labor Standards Act, as exempt employees are not entitled to overtime pay. These exemptions include \u201cexecutive,\u201d \u201cadministrative,\u201d \u201cprofessional,\u201d \u201ccomputer employee,\u201d and \u201coutside sales,\u201d among others. However, as with misclassifications, merely because an employer labels an employee as exempt, does not mean that characterization is correct. For example, the following factors\u2014each of which must be satisfied\u2014determine whether an employee truly falls under the executive exemption:<br \/>\n<strong>\u2022<\/strong> The employee must be compensated on a salary basis (as defined in the regulations) at a rate not less than $913 per week (or $47,476 annually for a full-year worker);<\/p>\n<p><strong>\u2022<\/strong> The employee\u2019s primary duty must be managing the enterprise, or managing a customarily recognized department or subdivision of the enterprise;<\/p>\n<p><strong>\u2022<\/strong> The employee must customarily and regularly direct the work of at least two or more other full-time employees or their equivalent; and<\/p>\n<p><strong>\u2022<\/strong> The employee must have the authority to hire or fire other employees, or the employee\u2019s suggestions and recommendations as to the hiring, firing, advancement, promotion or any other change of status of other employees must be given particular weight.<br \/>\nUnless each one of these factors is met, the employee does not qualify under the executive exemption, and he\/she must be paid overtime (unless another exemption applies). As another example, the following factors define whether an employee truly falls under the commonly-applied administrative exemption:<br \/>\n<strong>\u2022<\/strong> The employee must be compensated on a salary or fee basis (as defined in the regulations) at a rate not less than $913 per week (or $47,476 annually for a full-year worker);<\/p>\n<p><strong>\u2022<\/strong> The employee\u2019s primary duty must be the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer\u2019s customers; and<\/p>\n<p><strong>\u2022<\/strong> The employee\u2019s primary duty includes the exercise of discretion and independent judgment with respect to matters of significance.<br \/>\nOnce again, unless each one of these factors is met, the employee must be paid overtime (unless another exemption applies). As with misclassifications, employers have substantial financial incentives to avoid paying overtime, which must be paid at a rate of one and one-half times the employee\u2019s regular rate of pay for all hours worked beyond forty (40) in a workweek (and in several states, beyond eight (8) in a workday).<\/p>\n<p>Once again, unless each one of these factors is met, the employee must be paid overtime (unless another exemption applies). As with misclassifications, employers have substantial financial incentives to avoid paying overtime, which must be paid at a rate of one and one-half times the employee\u2019s regular rate of pay for all hours worked beyond forty (40) in a workweek (and in several states, beyond eight (8) in a workday).<\/p>\n<p><strong>B. Employees v. Independent Contractors<\/strong><br \/>\nBusinesses often characterize workers as \u201cindependent contractors,\u201d and treat them accordingly. This practice is, by itself, not improper. However, employers have significant financial incentives to maximize the number of workers classified as \u201cindependent contractors.\u201d Unlike \u201cindependent contractors,\u201d workers characterized as \u201cemployees\u201d typically receive costly benefits, which may include overtime pay, minimum wage, medical insurance, life insurance, 401(k), pension, holiday pay, sick pay, paid time off, family and medical leave, workers\u2019 compensation, unemployment insurance, salary increases, promotional opportunities, rights to appeal disciplinary actions, and more. For independent contractors, these various benefits are denied, taxes are not withheld, and a Form 1099-MISC is provided at the end of each year purportedly confirming that they are not employees. But beware\u2014a worker may truly be an \u201cemployee,\u201d despite being told they\u2019re not. The Fair Labor Standards Act, regulations and interpretations of the U.S. Department of Labor, and decisions of courts nationwide have made clear that companies may not simply place labels on workers, or pay them in certain ways or intervals, in order to avoid treating them as \u201cemployees.\u201d Rather, the following factors define the true relationship:<br \/>\n(<strong><strong>1<\/strong><\/strong>) the extent to which the work performed is an integral part of the employer\u2019s business;<br \/>\n(<strong>2<\/strong>) whether the worker\u2019s managerial skills affect his or her opportunity for profit and loss;<br \/>\n(<strong>3<\/strong>) the relative investments in facilities and equipment by the worker and the employer;<br \/>\n(<strong>4<\/strong>) the worker\u2019s skill and initiative;<br \/>\n(<strong>5<\/strong>) the permanency of the worker\u2019s relationship with the employer; and<br \/>\n(<strong>6<\/strong>) the nature and degree of control by the employer.<br \/>\nThis analysis is not mechanically applied, and no one factor is determinative of whether a worker is truly an \u201cemployee\u201d or an \u201cindependent contractor.\u201d Rather, these factors seek to determine the economic realities of the situation, in other words, whether a worker is economically dependent on the employer (i.e., an \u201cemployee\u201d) or instead is in business for himself (i.e., an \u201cindependent contractor\u201d). Accordingly, the more vital an individual is to the business, and the more control the business exercises over the individual\u2019s work, the more likely that individual should be classified as an \u201cemployee.\u201d<\/p>\n<p>If you have any doubt as to whether your employer properly classified you as an \u201cindependent contractor,\u201d or has properly denied you overtime on the basis of an exemption, you may be entitled to recover the amounts withheld from you, and potentially much more. To determine whether your rights may have been violated, contact attorney David A. Weisz in the Marietta, Georgia office of Johnson &amp; Weaver, LLP, either by email at DavidW@johnsonfistel.com or by phone at (770) 200-3108. You can also contact Partner Attorney Frank J. Johnson in the San Diego, California office either by email at FrankJ@johnsonfistel.com or by phone at (619) 230-0063.<\/p>\n","protected":false},"excerpt":{"rendered":"<p>Many of the hard working people in today\u2019s labor force have money and benefits taken from them in the workplace\u2014by their own company. Misclassification of workers as independent contractors and improper application of overtime exemptions are ways that businesses attempt to unlawfully reduce labor-related expenses. Companies save thousands (and millions) of dollars each year by [&hellip;]<\/p>\n","protected":false},"author":3,"featured_media":195,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"post_statement":"","post_description":"","post_cta":"","post_button":"Read More","post_button_url":"","ub_ctt_via":"","compliance_id":"","post_disclaimer":"","footnotes":""},"categories":[10],"tags":[],"acf":[],"featured_image_src":"https:\/\/www.johnsonfistel.com\/wp-content\/uploads\/2021\/10\/Title3.jpg","author_info":{"display_name":"Matt Ostman","author_link":""},"_links":{"self":[{"href":"https:\/\/www.johnsonfistel.com\/wp-json\/wp\/v2\/posts\/1089"}],"collection":[{"href":"https:\/\/www.johnsonfistel.com\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.johnsonfistel.com\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.johnsonfistel.com\/wp-json\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"https:\/\/www.johnsonfistel.com\/wp-json\/wp\/v2\/comments?post=1089"}],"version-history":[{"count":0,"href":"https:\/\/www.johnsonfistel.com\/wp-json\/wp\/v2\/posts\/1089\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.johnsonfistel.com\/wp-json\/wp\/v2\/media\/195"}],"wp:attachment":[{"href":"https:\/\/www.johnsonfistel.com\/wp-json\/wp\/v2\/media?parent=1089"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.johnsonfistel.com\/wp-json\/wp\/v2\/categories?post=1089"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.johnsonfistel.com\/wp-json\/wp\/v2\/tags?post=1089"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}