The usual wage-and-hour rules don’t apply to independent contractors because they aren’t employees. But that doesn’t mean you can forget about the Fair Labor Standards Act by deciding to just call someone an independent contractor.
What really counts is how much control you assert over the individual in how and when she does the work.
Recent case: Rachel provided legal support services to an attorney with whom she had an apparently volatile personal and romantic relationship. Later, she would claim he physically abused her. She ended the relationship but kept the job.
Meanwhile, Atinum, a land company, began using the attorney for some of its work. Atinum also contracted with Rachel for support services, requiring her to create her own corporate entity through which the contract was run. But the actual work she performed was all done on equipment and in office space provided by Atinum. Plus, the attorney told her what work to do and in which order to do it.
About a year after Rachel and the attorney broke up, the attorney fired Rachel. Atinum quit giving her assignments.
She sued Atinum, alleging unpaid wages and other claims related to her discharge. Atinum argued the case should be dismissed because Rachel wasn’t an employee.
The court refused. It ordered a trial and invited Rachel to argue that the company exerted so much control over how, when and where she did her job that, for all practical purposes, she might be considered an employee rather than a true independent contractor. (Fontenot v. Brouillette, et al., No. 4:10-CV-01053, SD TX, 2013)
Final note: Genuine independent contractors usually have great control over their day-to-day work lives, including how and when they work. They usually own their own equipment and are free to accept work for other clients.
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