Can I Get Overtime as an Independent Contractor?

Form1099-MISC2007-72Just because your boss calls you an independent contractor, sends you a 1099 and had you sign an independent contractor’s agreement does not meet that you are exempt from overtime law in Georgia. So how does an overtime lawyer figure it out?


Does your boss tell you where to go and when and how to do your job?

Does your job not require specialized skills?

Have you worked with the company for a long time?

Is your job one that a lot of people at the company do?

If you answered “yes” to a lot of these, you are probably protected by the overtime law. Employers have a variety of reasons for trying to call you an independent contractor but the bottom line is that a Rose by any other name is still a rose. Let’s now look at the legal test:
Courts don’t look at the employer’s definition, the use the Economic Reality Test. What is the economic reality of the relationship? Are you economically dependent on the business or are you in business for yourself?

Economic Reality Test Factors:

1) The skill needed to do your job. More general it is, more likely employee
2) Amount of control your boss has on how your work is done. More control= more likely you are an employee.

3) Do you have a chance to profit or lose money as contractor or is income fixed?

4) Are you invested in the equipment at the business?

5) How long have you been working for these people. Shorter stint= less likely that you are an employee
6) Is the work you do a core part of their business. For example if they are in sales and you are in charge of IT to run the computers, it is more likely you are a contractor. On the other hand if they are in sales and you are a salesperson for them, then more likely to be an employee
In a nutshell, the biggest issue is how much does the company control what you do. If the company is micromanaging you, you are likely and employee and entitled to overtime under the FLSA
Nonetheless, there are countless scenarios where an employment relationship can exist, and the courts will normally look at all or some of the above factors in the particular facts of each situation. For example: