Hi, thanks for submitting your question today. The misclassification of employees as something other than employees, such as independent contractors, presents a serious problem for affected employees, employers, and to the entire economy. Misclassified employees are often denied access to critical benefits and protections – such as family and medical leave, overtime, minimum wage
and unemployment insurance
– to which they are entitled. Employee misclassification also generates substantial losses to the Treasury and the Social Security and Medicare funds, as well as to state unemployment insurance
and workers compensation
funds. Some states, but Virginia is not one of them, have teamed up with the IRS and Department of Labor
to crack down on violating employers – the penalties can be significant.
Generally, if you are working for only one employer and your economic future is dependent on that one employer – you are an employee; not an independent contractor; this is regardless of whether you signed an independent contractor agreement with the employer.
Ask yourself the following questions if you answer yes to more than a few you are probably an employee and entitled to a lot of extra benefits and pay.
1. your employer exercises control over the manner you complete a job (when, where, how you do the work);
2. you usually work under supervision;
3. you work for the employer month after month or year after year instead of completing a job when the contract period ends;
4. your employer or co-worker trains you to perform a job in a certain way and you learn your job from watching experienced employees, or attend meetings or courses;
5. you must complete the tasks assigned to you, and cannot hire assistants to perform the work you were hired to do;
6. your job and work are part of the daily operations of the business and your assignments are coordinated with other employees in the company, and the success of the business depends upon that work being done. For example, an office clerical worker is probably an employee because his work is coordinated with supervisors and other staff members, while an AC repairman hired by a restaurant to fix the AC unit is probably an independent contractor because during and after that project, he will have little or no interaction with any of the other employees (cooks, bartenders, waitresses, etc.);
7. your services are for the most part available only to the employer and not to the general public;
8. you are an integral part of the employer's business and rarely, if ever, offer your services to someone other than your employer;
9. your employer sets your schedule instead of coming and going as you please;
10. you must work at the employer's place of business, or at another location determined by the employer;
11. your employer pays you on a set schedule in regular amounts by the hour or salary;
12. your employer determines the order in which you must complete certain jobs, especially if the same outcome could be achieved by doing the tasks in a different order;
13. your employer gives you materials and tools needed to complete the job;
14. you typically work for one company instead of several customers at the same time.
From the facts of your question you are owed straight and overtime wage
under the Fair Labor Standards Act
...It's not at all clear to me why the department of labor did not direct you to file a charge with their wage & hour department, but that or retaining your own employment attorney would be your possible sources of recourse. If you wish to file a claim you can get free help from the Department of Labor Wage & Hour Department, tell them you believe you are misclassified, here: http://www.dol.gov/wecanhelp/howtofilecomplaint.htm
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